POON HAU KEI v. HSIN CHONG CONSTRUCTION CO LTD AND ANOTHER

FACV No. 18 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 18 OF 2003 (CIVIL)

(ON APPEAL FROM CACV NO. 167 OF 2002)

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J U D G M E N T

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Chief Justice Li:

1. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ:

2. The first point involved in this appeal goes to whether, and if so when, a party can succeed on the basis of a scenario that he has not pleaded but his opponent has pleaded. In the present case, the point arises in the context of an accident at work consisting of a fall from a height surrounded by an acute dispute as to the factual circumstances in which it occurred. That is not an uncommon situation. And indeed there is practically no end to the situations in which the point in question can arise. The second point goes to how an appellate court should approach a trial judge's apportionment of responsibility in an accident case where there has been negligence and contributory negligence.

Accident

3. On 5 January 1996 the appellant was working as a scaffolding worker at a construction site within Hung Hom Railway Station. The respondent was the principal contractor at the construction site. While working at a height, the appellant lost his balance. He fell a considerable distance through the air, landed on the edge of the railway platform beneath, and bounced or rolled on to the adjoining railway tracks. Not surprisingly, he sustained severe injuries.

Pleadings

4. Couching his claim in negligence, occupiers' liability and breach of statutory duty, the appellant sued the respondent and two other parties. One of those other parties was the fire services installations sub-contractor. And the other was the appellant's employer to whom that sub-contractor had sub-sub-contracted scaffolding works. The respondent was made the 1st defendant; the sub-contractor was made the 2nd defendant; and the sub-sub-contractor was made the 3rd defendant.

5. Section 21(1) of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, provides that "[w]here any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons ... the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage".

6. Shortly stated, the case pleaded on the appellant's behalf was to the effect that he had not been provided with any safe means of working at a height; that he had been provided instead with an unsuitable ladder; and that he fell off that ladder while standing at the top of it. He gave evidence to this effect.

7. The respondent, on the other hand, pleaded that the accident was "caused solely or contributed to by the negligence of" the appellant. And in support of that plea, it pleaded alternative cases as to what the appellant had been standing on and then fell off. The first was that he had been standing on a folding step-ladder. And the second was that he had been standing on a fluorescent light trough. This light trough was about a foot wide and suspended high above the platform on to which the appellant fell. Sometimes, eg. where the plea of contributory negligence is against a passenger who failed to wear a seat-belt, it is natural to couch such a plea in terms of causing or contributing to the damage. But in other cases, including one like the present, it is traditional and acceptable to couch a plea of contributory negligence in terms of causing or contributing to the accident.

Evidence

8. In pleading - and for the purposes of proving - that the appellant had been standing on the light trough, the respondent relied on evidence in the form of an out-of-court admission to that effect by the appellant. This admission was made by the appellant in a signed statement taken from him by the respondent's safety officer who interviewed him in hospital on the day following the accident.

At trial and in the Court of Appeal

9. Following a lengthy trial in the High Court in December 2001, the trial judge (Deputy Judge Fung) handed down his judgment on 22 January 2002. He rejected the appellant's evidence that he had been standing on a ladder. Acting on the appellant's out-of-court admission to that effect, he found instead that the appellant had been standing on the light trough. On that basis, he found for the appellant against the respondent in negligence, occupiers' liability and breach of statutory duty under the Construction Sites (Safety) Regulations, Cap. 59; against the 2nd defendant in negligence and occupiers' liability; and against the 3rd defendant in negligence. But he also found contributory negligence on the appellant's part, and assessed his contributory negligence at 25 per cent. He awarded the appellant damages as assessed but reduced for contributory negligence, interest thereon and three-quarters of his costs.

10. The present respondent appealed to the Court of Appeal. By a judgment handed down on 30 January 2003, that court (Rogers VP and Le Pichon and Ma JJA) allowed the appeal so as to dismiss the present appellant's claim. The Court of Appeal's reasons were given by Ma JA (as the present Chief Judge of the High Court then was) with whose judgment Rogers VP and Le Pichon JA agreed.

Identifying the issue

11. Ma JA said that the critical issue in the appeal, and the only issue he considered it necessary to deal with, was the one which he formulated thus: "Was the judge correct in proceeding (and finding liability against the 1st defendant) on the basis of a version of facts which was different to that advanced and pleaded by the plaintiff, or should he in the circumstances have dismissed the claim?" The answer which Ma JA gave to this question was that the trial judge should have dismissed the claim.

12. In regard to identifying the issue before the court, Ma JA said:

" In circumstances where the version of events as pleaded or advanced by a party is found not to be accurate or true, and another version is held to represent the true position, a court must be careful when asked to make a finding of liability (or some other legal consequence) based on this other version. Before attempting to do so, the court must first be satisfied that the issue has been properly put before it and identified so that the other party becomes fully aware of the case he has to meet. This is usually done by the matter being made clear in the pleadings. Next, the court must also be satisfied that the 'new version' is one that the other party has been given a full opportunity to deal with. Both elements must exist before a court can then proceed to make a finding of liability or some other legal consequence based on the 'new version'. There may of course be other considerations as well, but these two are usually the most important."

I respectfully agree with that as far as it goes. But it suffers from an omission. The omission is one from which Ma JA's formulation of the crucial issue likewise suffers. It, like that formulation, fails to cater for the situation where the trial judge proceeds on a scenario which, although different from the one pleaded and advanced by the plaintiff, is a scenario pleaded and advanced by the defendant. That is the situation in the present case. The respondent pleaded, albeit in the alternative, the light trough scenario. And it advanced that scenario, albeit in the alternative, by adducing in evidence - and relying on - the appellant's out-of-court admission that he had been standing on the light trough.

13. Ma JA also said:

"... the 1st defendant's focus in the conduct of the trial (and this is borne out by the transcript as well as its written submissions at trial) was on the ladder allegation. [Counsel for the 1st defendant] cross-examined the plaintiff on the premise that he was on the ladder. It is of course correct that he did also put to the plaintiff that the accident took place when he was on the light trough, but, as I have said, this was really to try to discredit his version of events. He could not cross-examine the plaintiff on the basis that he was on the light trough. It would have been futile and indeed absurd to have done so when the plaintiff was so adamant that he was not on the light trough."

But that does not mean that the cross-examiner could not put to the appellant what his side pleaded against the appellant, namely that he would have caused or contributed to the accident if he had been standing on the light trough. And the transcript reveals that the appellant was indeed cross-examined along those lines by Mr Patrick Lim for the 1st defendant, now the respondent.

Election

14. The question of election is discussed in Ma JA's judgment where he says:

"Of course, a party can generally plead and run cases in the alternative, but where he seeks to advance two entirely different factual versions in relation to the same event, he will almost invariably be required to elect which version he is going to advance. This approach is consistent with considerations of justice to the parties and proper trial management. It may be different where a party does not really know what happened or in a res ipsa loquitur situation."

In my view, no question of election arose against any of the parties in the present litigation. It is to be observed that the respondent, too, put forward alternative cases. Its stance was that the appellant was standing on a ladder, alternatively, on the light trough, and that, either way, he caused or contributed to the accident. In the witness-box, the appellant gave one account and one account only. This is that he had been standing on a ladder. All that the trial judge did was to reject that account and proceed instead on one of the alternatives which the respondent pleaded and adduced evidence of, namely that the appellant had contributed to the accident by standing on the light trough.

Amendment

15. Ma JA also discussed the question of whether the appellant should have amended his pleadings to rely on the light trough scenario. In my view, no such amendment was necessary. If it had only been pleaded against the appellant that he had been solely responsible for the damage, then an amendment would have been necessary. It would then have been necessary for the appellant to amend his pleadings to plead that he could succeed, either wholly or in part, even if he had been standing on the light trough. But it was pleaded that he caused or contributed to the accident by standing there. Therefore what the trial judge found as to the mixed causes of the accident was covered by the pleadings. It would have been otherwise if the trial judge had exonerated the appellant from all responsibility for the damage even though he had been standing on the light trough. But the trial judge did not do that. He found the appellant partly responsible for the damage.

16. Two decisions were cited by Ma JA. One was the decision of the Court of Appeal in England in Soar v. National Coal Board [1965] 1 WLR 886. The other was the decision of Geoffrey Lane J (later Lord Lane CJ) in Waghorn v. George Wimpey & Co. Ltd [1969] 1 WLR 1764. Soar's case was cited for what Lord Denning MR said at p.890 E-F:

" I would just add this. The case as framed by the plaintiff failed. It was suggested by counsel that additional supports ought to have been provided all round the sides. But that case was not put forward until the trial and no evidence was called to support it. If it had been put forward, the defendants might well have wished to plead section 157 of the Act and say it was impracticable to avoid what happened. It would not be right to allow a new case of that kind to be raised at a late stage after the plaintiff's case as framed had failed."

17. Waghorn's case was cited for what Geoffrey Lane J said at p.1771 B-G:

" In my judgment, this is not a case which is just a variation, modification or development of what is averred. It is a case which is new, separate and distinct, and not merely a technicality. Let me hasten to add that if matters emerge, particularly matters of technicality which, perhaps, could not be foreseen by those responsible for pleading cases, and those things emerge during a case, then it would be quite wrong to dismiss a plaintiff's claim because his pleadings have not measured up to the technical facts which have emerged. One often listens sympathetically to applications to amend in those circumstances. Here, however, there is nothing technical at all. A man is said to have slipped. There is nothing technical about that.

One must test the plaintiff's submissions in this way: if these allegations had been made upon the pleadings in the first place, namely allegations based upon the facts as they have now emerged, would the defendants' preparation of the case, and conduct of the trial, have been any different? The answer to that is undoubtedly 'Yes'. Evidence would have been sought as to the safety of the pathway alongside the caravan; as to the frequency with which it was used; as to the position of the valve under the caravan. I say that because there was a dispute as to its precise position. Mr. Younger, the charge-hand, said it was on the left-hand side of the caravan. Mr. Frost said it was on the right-hand side. If the plaintiff's case had been pleaded to the effect that it was whilst he was on his way to that valve that he had slipped, then the preparation of the case would have been entirely different and its presentation would have been different.

There was no application here for leave to amend. Indeed, [counsel for the plaintiff] may have been very wise not to make any such application, but the upshot of this matter is that this was clearly so radical a departure from the case as pleaded as to disentitle the plaintiff to succeed. However, in fairness to the plaintiff it is only right that I should examine the situation which has emerged as being the truth."

18. In each of those two cases the plaintiff sought to succeed on a scenario not pleaded by either side and outside the defendant's contemplation. That is the opposite of the situation in the present case. The respondent pleaded the light trough scenario as one in which the accident was "caused solely or contributed to by the negligence of" the appellant. (Emphasis supplied).

19. Provided that it does so in a fair manner, a court is entitled to decide in favour of a party on the basis of a scenario that he has not pleaded but his opponent has pleaded. This is a proposition at which I arrive on principle. It is also a proposition supported by highly persuasive authority. In John G. Stein & Co. Ltd v. O'Hanlon[1965] AC 890 at p.910A, Lord Guest said: " I fail to see how [the defenders] can have been in any way prejudiced when the facts upon which liability was established are those averred in the defences and spoken to by their witnesses in evidence". Lord Reid (at p.906 C-D), Lord Evershed (at p.907 E-G) and Lord Wilberforce (at p.913E) agreed in terms with Lord Guest's rejection of the defenders' pleading point. And Lord Hodson did so in effect when (at p.907G) he concurred in Lord Reid's opinion.

20. For the foregoing reasons, I am of the view that the pleadings accommodate the trial judge's findings as to how the damage was caused and how the responsibility for it is spread. And it is to be noted that both sides proceeded at the trial on the basis that each of them could be held partly responsible for the damage on the light trough scenario. I have already pointed out that the cross-examination of the plaintiff, now the appellant, conducted by Mr Lim on behalf of the 1st defendant, now the respondent, included cross-examination to the effect that standing on the light trough would amount to contributory negligence. And in his closing speech at the trial, Mr Lim addressed the trial judge on the question of contributory negligence in the light trough scenario. Doing so, Mr Lim ended by saying this:

"He really ought to have known better. And to undertake this acrobatic feat, if I may put it that way, on a light trough, even if there's fault on our part, he should be visited with 80 per cent to reflect his blameworthiness. Because blameworthiness, there are two elements. Blameworthiness and causation, both on him, because he could have used a wooden ladder which he didn't use. It may take him a little less time by going up to the light trough but it's not too onerous to expect him to move the ladder from one spot to another to retrieve wires from the light trough. So that would be my submission on contributory negligence."

Replying to this, Mr Andrew Li for the plaintiff, now the appellant, submitted that the percentage of contributory negligence to be found against his client on the light trough scenario should be small. He put it thus:

" I would say maximum 20 and no more because the modern approach clearly, all the updated cases suggested the court is very slow to put any blame on the worker in circumstances like this when he was not given not much of a choice to carry out his duties and the fact that he conveniently choose one method which with hindsight might not have been the most safe method. The court is not going to put them into -- make him to be mainly responsible for that."

Fairness

21. Was there any unfairness in the process by which the trial judge reached his findings? In Bank of America v. Chai Yen [1980] 1 WLR 350 at p.353 D, Lord Lane, delivering the advice of the Privy Council, said that "the essence of any rule of procedure must be fairness". The same is true of any rule of practice.

22. In the present case, the respondent pleaded the light trough scenario as one in which the appellant caused or contributed to the accident. It adduced evidence to prove - and succeeded in proving - that the appellant had been standing on the light trough. It cross-examined him to the effect that he would be at fault if he had done so. And it addressed the trial judge on the issue of contributory negligence in the light trough scenario. In short, the respondent pleaded and argued that the appellant caused or contributed to the accident in the light trough scenario.

23. Thus the respondent did not opt at the trial for the more ambitious but perhaps less promising course of confining itself to a contention that the light trough scenario left it blameless, whether by reason of an absence of foreseeability or otherwise. If the respondent had opted at the trial for that course, the appellant might have adduced evidence to answer the contention, and the state of the evidence might then have been materially more favourable to the appellant. As was said in this Court in Flywin Co. Ltd v. Strong & Associates Ltd (2002) 5 HKCFAR 356 at p.369 B-C, a party who "has omitted to take a point at the trial and then seeks to raise that point on appeal ... will be barred from doing so unless there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at the trial".

24. On the question of fairness, it is pertinent to note that the trial judge said that the light trough scenario had been fully canvassed in evidence and submissions by the parties [and that there was] no prejudice to anyone. It was a strong division of the Court of Appeal which took the opposite view. But receiving evidence at first-hand provides a unique advantage over what can be gathered from the pleadings pre-trial and over what can be gathered from the record post-trial. As Lord Normand said in Jamieson v. Jamieson [1952] AC 525 at p.526, evidence can present more than pleadings do without exceeding them by "a single word". And the "record of proceedings", Blair-Kerr J rightly observed in R v. Lo Yim-kai [1966] HKLR 414 at p.422, "can never reproduce the atmosphere of a trial". So a trial judge is, in the normal way, uniquely well placed to assess whether each party has had an adequate opportunity at the trial to advance its own case and meet the case deployed against it. As Lord Carson put it in Sutherland v. Stopes [1925] AC 47 at p.98, "I do not think that ... any appellate tribunal can be too careful in ascertaining by an examination of the proceedings what was the course of the trial, what was the real issue fought out by the assent of the parties on both sides?". On such questions a trial judge's appreciation of the position ought not to be overturned on appeal except for a very strong reason or reasons. I see no such reason in the present case.

Apportionment

25. What remains is the respondent's submission on apportionment. Both in the Court of Appeal and before us, the respondent advanced an alternative to its primary submission that the appellant's claim ought to be dismissed. This alternative submission is that the trial judge's apportionment of liability ought to be disturbed so as to apportion to the appellant 75 to 80 per cent of the responsibility for the damage in lieu of the 25 per cent thereof apportioned to him by the trial judge.

26. In assessing the appellant's responsibility at 25 per cent, the trial judge was rightly influenced by the fact that the appellant was the victim of a breach of a statutory duty designed to prevent workers from falling or injuring themselves if they fell. It is true that the appellant's contributory negligence went beyond "inattention" as spoken of by Lord Wright in Caswell v. Powell Duffryn Collieries Ltd [1940] AC 152 at pp 178-179 and echoed by Lord Tucker in Staveley Iron & Chemical Co. Ltd v. Jones [1956] AC 627 at p.648. But it is covered by a statement in the judgment of the Court of Appeal delivered by Clough JA in Li Man Yuen v. Li Chung I trading as V.F. Electric Manufacturing [1991] HKLY 429 which, taking it from the transcript of the judgment at p.13, reads:

"Given that the plaintiff here can be said to have chosen to take a risk and to have gone beyond mere inadvertence or momentary inattention and that his contribution to the causation of the accident was not insignificant, we nevertheless regard his degree of culpability or blameworthiness for the accident in all the circumstances as being very small compared with that of the defendant."

In that case, where the breach of statutory duty was perhaps more blatant than the breach of statutory duty in the present case, the contributory negligence was assessed by the Court of Appeal at 20 per cent (as compared with 25 per cent in the present case).

27. Li's case was cited to the trial judge and influenced his view that 25 per cent of the responsibility for the damage should be apportioned to the appellant. And I have no doubt that the trial judge would have felt fortified in that view if he had been shown Reeves v. Commissioner of Police of the Metropolis [2000] 1 AC 360 where Lord Hoffmann said at p.371 E-F that "an assessment of responsibility must take into account the policy of the rule, such as the Factories Acts, by which liability is imposed". The policy of the Construction Sites (Safety) Regulations is, as their name suggests and their contents confirm, to promote safety at construction sites by imposing duties designed to protect construction workers from physical harm. That is their purpose. Mr Justice Ching PJ said so in Rainfield Design & Associates Ltd v. Siu Chi Moon (2000) 3 HKCFAR 134 at p.139 A-B, and I made a similar point at p.141 C-D in that case.

28. It is true that even where a defendant is in breach of a statutory duty imposed for the safety of workers, the bulk of the responsibility can sometimes be apportioned to a worker who was killed or injured. Two such cases are mentioned in the trial judge's judgment. They are Storey v. National Coal Board [1983] ICR 156 (where the deceased mine worker was held 75 per cent responsible) and Uddin v. Associated Portland Cement Manufacturers Ltd [1965] 2 QB 582 (where the injured factory worker was held 80 per cent responsible). But each case turns on its own facts. Mr Storey was riding on a belt conveyor meant only for minerals, doing so in defiance of warning notices and even though it rendered him liable to a deduction of wages. There it is no suggestion that the appellant in the present case had defied warning notices or that he had conducted himself in such a way as rendered him liable to a deduction of wages. Mr Uddin was trying to catch a pigeon, and had thus taken himself out of the course of his employment. There is no suggestion that the appellant in the present case had taken himself out of the course of his employment.

29. I note with interest the information provided in footnote 55 at p.260 of Winfield & Jolowicz on Tort, 16th ed. (2002). There it is noted that the lowest apportionment of responsibility traced is five per cent to the plaintiff in Lasczyk v. National Coal Board [1954] 1 WLR 1426, and that a figure of five per cent was agreed in Stringman v. McArdle [1994] 1 WLR 1653. This footnote concludes with the statement that "[m]ost cases seem to be within the range 25%/75% either way". That range accords with my own limited and dated experience of personal injury cases in Hong Kong. More significantly, neither Mr Ruy Barretto SC who leads the appellant nor Mr Michael Ozorio SC who leads for the respondent say that their experience is otherwise, and both of these learned counsel are highly experienced and currently active in this field.

30. Mr Ozorio placed reliance on the fact that the appellant is an experienced scaffolding worker. But as Mr Justice Ching PJ observed in the Rainfield case at pp 139J-140A that "it is often more important to give experienced workmen instructions of this sort because their familiarity with their work may tend to leave them contemptuous of safety precautions".

31. When apportioning responsibility in an accident case where there has been negligence and contributory negligence, a trial judge is concerned with blameworthiness and causative potency. He is engaged in a weighing and balancing exercise involving issues of fact and degree. And he conducts this exercise with the important advantage of having received the evidence at first-hand as it unfolded before him. The product of such an exercise is to be equated with the product of an exercise of discretion. For example, in National Coal Board v. England [1954] AC 403 at p.420 Lord Porter spoke in terms of an apportionment of responsibility for the damage as a "discretion exercised by the judge who tried the case".

32. Like any exercise of discretion or anything equivalent to an exercise of discretion, an apportionment of responsibility for the damage is not lightly to be disturbed on appeal. This point was made in the decision of this Court in Wishing Long Hong v. Wong Kit Chun (2001) 4 HKCFAR 289. The appellant in that case invited us to interfere with the Court of Appeal's apportionment of responsibility. We declined to do so. As to why we declined to do so, Sir Thomas Eichelbaum NPJ, in a judgment with which all the other members of the Court agreed, said (at p.298 A-B) that "this Court should not interfere unless the result is outside the limits reasonably available to the Court below."

33. From what I have just said, it can be seen that I treat apportioning responsibility for the damage as analgous with exercising a discretion. But even if no such analogy were drawn and an apportionment of responsibility for the damage were treated simply as a finding of fact, it would still be a finding of fact of a type that is particularly difficult to disturb on appeal. Subject to the point that appeals against jury verdicts are attended by the added difficulty arising out of the fact that juries do not give reasons for their verdicts, it is worth noting that, as Viscount Birkenhead LC said in The Volute [1922] 1 AC 129 at p.144, "the question of contributory negligence must be dealt with somewhat broadly and upon common-sense principles as a jury would probably deal with it". The respect traditionally accorded by appellate courts to jury verdicts is reflected in this passage in the advice of the Privy Council delivered by Lord Herschell LC in Australian Newspaper Co. Ltd v. Bennett [1894] AC 284 at p.287:

"Their Lordships have not, any more than the Court below had, to determine in the present case what is the conclusion at which they would have arrived, or what is the verdict they would have found. The only point to be determined is, whether the verdict found by the jury, for whose consideration it essentially was, was such as no jury could have found as reasonable men."

34. It is true that The Volute was a collision at sea case decided before the enactment of the Law Reform (Contributory Negligence) Act 1945 (on which our own contributory negligence legislation is modelled). But the statement by Viscount Birkenhead LC quoted above lends itself to general application. It was applied by the Privy Council in Sigurdson v. British Columbia Electric Railway Co. Ltd [1953] AC 291 to a collision on land covered by British Columbia contributory negligence legislation similar to the 1945 Act. Then it was applied by the House of Lords in Stapley v. Gypsum Mines Ltd [1953] AC 663 to a post-1945 mining accident. And it is equally applicable, in my view, to a construction site accident covered by our contributory negligence legislation.

35. As to that, it is to be noted that in Westwood v. Post Office [1974] AC 1, involving an accident on office premises, Lord Simon of Glaisdale said (at p.11 A-C) that "[i]n considering apportionment of fault, the law has developed useful tools of analysis in the concepts of blameworthiness and causative potency". The cases he cited in support of this statement are: Davies v. Swan Motor Co. (Swansea) Ltd [1949] 2 KB 291 involving a traffic accident; The Miraflores and The Abadesa [1967] 1 AC 826 involving a collision at sea; and Brown v. Thompson [1968] 1 WLR 1003 involving a traffic accident.

36. In The Macgregor [1943] AC 197 at p.201 Lord Wright said that an apportionment of responsibility "involves an individual choice or discretion, as to which there may well be differences of opinion by different minds." Thus there are many cases in which appellate judges have left first instance apportionments of responsibility undisturbed while indicating that they might have apportioned responsibility differently if it had been their lot to do so at first instance. For example, du Parcq LJ (later Lord du Parcq) did so in Ingram v. United Automobile Service Ltd [1943] 1 KB 612 at pp 614-615, and Winn LJ did so in Brown v. Thompson at p.1011 C-E.

37. I am of course aware that in The Otranto [1931] AC 194 at p.204 Lord Buckmaster said: "Upon the question of altering the share of responsibility each has to take, this is primarily a matter for the judge at the trial, and unless there is some error in law or fact in his judgment it ought not to be disturbed". (Emphasis supplied). I do not read that as precluding an appeal against an apportionment except on the grounds of an error of law or primary fact. But in the absence of any error of law or primary fact, apportionment is primarily (albeit not exclusively) for the judge at the trial. And such is the nature of the exercise involved that there is necessarily a considerable range of possible choices within which a trial judge is entitled to apportion responsibility as he sees fit. So in the absence of any error of law or primary fact, his choice is not to be disturbed on appeal unless it plainly falls outside such range.

38. In the present case, the Court of Appeal gave no indication one way or the other as to whether it would have favoured disturbing the trial judge's apportionment if it had not accepted the respondent's primary submission. This puts us in the position of a final appellate court asked to disturb a trial judge's apportionment of responsibility on which apportionment the intermediate appellate court has not pronounced. This position is not an ideal one. But neither side wants us to remit the issue of apportionment to the Court of Appeal. And we have ourselves considered this issue on the merits.

39. The trial judge's duty under s.21(1) of the Law Amendment and Reform (Consolidation) Ordinance was to reduce the appellant's damages to such extent as he thought just and equitable having regard to the appellant's share of the responsibility for the damage. Whatever can be said for or against the trial judge's apportionment of responsibility, there is no suggestion that it involves any error of law or primary fact. Does his choice plainly fall outside the range of possible choices within which he was entitled to apportion responsibility as he saw fit? Standing on the light trough was a very careless thing for the appellant to do. But the situation in which the appellant came to do that was one in which the respondent was in breach of its statutory duty designed to prevent workers from falling or injuring themselves if they fell. This is a statutory duty the policy of which is to protect persons like the appellant from physical harm. It was incumbent on the trial judge to take that policy into account, as he did. There is nothing unusual in general about a 75 per cent/25 per cent apportionment of responsibility. I do not see such an apportionment as one that plainly falls outside the range of possible choices in circumstances like the present. So I would not disturb the trial judge's apportionment of responsibility.

Result

40. In the result, I would allow the appeal to restore the trial judge's orders (including his order awarding the appellant three-quarters of his costs at first instance, the appellant not having appealed against the witholding from him of one-quarter of those costs). As to the costs here and in the Court of Appeal, I would order and direct as follows: (i) there be an order nisi awarding the same to the appellant; (ii) such order will become absolute 21 days after the handing down of judgment in this case unless before then the Registrar of this Court has received a written submission containing full reasons seeking some other order as to the costs here or in the Court of Appeal; and (iii) if such a written submission is so received, procedural directions on how such costs are to be dealt with be made by the Registrar, subject to her discretion to remit the question of such directions to a single permanent judge. I would of course order legal aid taxation of the appellant's own costs here and in both courts below.

Mr Justice Chan PJ:

41. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Ribeiro PJ:

42. I agree with the judgment of Mr Justice Bokhary PJ.

Sir Thomas Eichelbaum NPJ:

43. I agree with the judgment of Mr Justice Bokhary PJ.

Chief Justice Li:

44. The Court unanimously allows the appeal to restore the trial judges orders and makes the orders and directions as to costs set out in the concluding paragraph of the judgment of Mr Justice Bokhary PJ.