WONG TANG KEUNG v. LEE WAI ENGINEERING COMPANY LTD AND ANOTHER

CACV 165/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 165 OF 2012

(ON APPEAL FROM DCPI NO. 2053 OF 2007)

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J U D G M E N T

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Hon Chu JA (handing down the judgment of the Court):

1.  The plaintiff had been in the employ of the first defendant as a plumber electrician since May 1997.

2.  The second defendant was the manager of Manly Plaza. The first defendant was its contractor responsible for providing repair and maintenance services to Manly Plaza. On 3 December 2004, the plaintiff was stationed at Manly Plaza as a plumber electrician.

3.  Around 11 o’clock that morning, a cleaner, Chan Lin Fai (transliteration), informed the plaintiff that a fluorescent tube in the false ceiling about 3.45 metres above the floor near the escalator of Phase I Manly Plaza had gone out of order. The plaintiff therefore climbed up a wooden ladder to inspect the fluorescent tube. Chan Lin Fai was beside him to assist by holding and steadying the ladder. As the fluorescent tube was above the escalator, the ladder could not be placed directly under it.  When the plaintiff tried to adjust the bracket at the holder of the fluorescent tube with an electric tester screwdriver, he lost balance, fell off the ladder to the floor and was injured.

4.  For this accident, the first defendant paid the plaintiff $103,788.91 as compensation pursuant to the Employees’ Compensation Ordinance, Cap 282, Laws of Hong Kong.

5.  After that, the plaintiff brought a personal injury action against the first and the second defendants (DCPI 2053/2007) in the District Court to claim damages against them on the grounds that they were negligent and in breach of the Occupational Safety and Health Ordinance, Cap 509 and the Occupiers Liability Ordinance, Cap 314, Laws of Hong Kong. The matter was tried before Deputy District Judge Geoffrey Chan. On 15 June 2010, the Deputy District Judge handed down his judgment. He held that the first defendant had failed to provide a reasonable system of work and supervision, thus causing the accident. He was held liable. At the same time, the Deputy District Judge held that the plaintiff was wrong in his assessment of the potential risk for injury in performing the work in question and used the wrong method to fix the malfunctioning fluorescent tube. His contributory negligence was assessed at 50%.

6.  The Deputy District Judge held that the first defendant should pay damages of $118,543.50 less the compensation he had made pursuant to the Employees’ Compensation Ordinance.

7.  On the other hand, the first and the second defendants had reached agreement that the compensation to the plaintiff be borne at the ratio of 60:40.

8.  Feeling aggrieved, the plaintiff applied to the Deputy District Judge for leave to appeal against the judgment. The Deputy District Judge refused the application on 5 July 2010. The plaintiff later applied to the Court of Appeal for leave to appeal out of time. On 18 July 2012, the Court of Appeal, constituted by the Hon Cheung and Yuen JJA, granted the application.

Grounds of appeal

9.   The plaintiff advanced two grounds of appeal:

(1) The plaintiff should not be made to bear contributory negligence of 50%; he should only bear 10%.

(2) The plaintiff resumed working for the first defendant at the end of his sick leave but the employment was terminated in March 2006 not because of personnel reshuffle as alleged by the first defendant but because of his diminished ability to work after the accident. The plaintiff claimed that he was 61 years old when his employment was terminated[1] He should therefore be paid the earnings from 61 years to 65 years (i.e. $12,000 x 48 months=$576,000) to compensate his loss of earning capacity.

Contributory negligence

10.   According to the findings of facts made by the Deputy District Judge, the accident happened because the plaintiff tried to fix the fluorescent tube on a wooden ladder and not a working platform. The Deputy District Judge pointed out that a working platform could be placed directly under the ceiling where the fluorescent tube was so that the plaintiff could do the repair work without having to bend down, nor would he lose balance and fall to the floor. According to the testimony given by the witness of the first defendant, Chiu Hon Man (transliteration), the first defendant had a mobile working platform which, though not stored at Manly Plaza, could be arranged to be sent to the Plaza for use when necessary. The Deputy District Judge also found that, if the first defendant at that time had a proper supervision system, then the supervisor could remind the plaintiff that he should use a working platform and arrange its delivery to Manly Plaza for his use, thus avoiding the accident.

11.   As regards the plaintiff, the Deputy District Judge found him guilty of contributory negligence because he did not ask the staff of the first defendant to arrange for the delivery of the mobile working platform to Manly Plaza before he carried out the repair work. Although the use of working platform would entail the switching off of the escalator, it was not urgent to repair the malfunctioning fluorescent tube. The plaintiff could have switched off the escalator first, or put off the repair work to night-time. The Deputy District Judge also found that the plaintiff used inappropriate means to repair the fluorescent tube. Amongst other things, he tried to adjust the bracket at the holder of the fluorescent tube with an electric tester screwdriver and not a pair of pliers.

12.    After referring himself to Chan Kin Ka v Siu Tung Hing & Wong Siu Sum t/a Wing Hing Spraying Engineering Co & Anor (HCPI570/1998) and Chak Hung v Mo Tak Yau & Mo Tak Nam (t/a Top Art Decoration and Engineering) (HCPI797/1996), he found the plaintiff guilty of 50% contributory negligence.

13.   In Chung Yuen Yee, the Administratrix of the Estate of Lai Wing Kee, deceased v. Sam Woo Bore Pile Foundation Limited & Ors [2011] 4 HKLRD 580, the Court of Appeal cited two English cases, Hutchison v London& North Eastern Railway Co [1942] 1 KB 481 and General Cleaning Contractors Ltd v Christmas [1953] AC 180 and reiterated that in a case involving hazardous work where the employers provided no supervision, no appropriate equipment or no adequate work force, the court will only find contributory negligence when the facts are very unusual (such as where a worker chose to work in an unsafe manner on his own). The Court of Appeal pointed out that in such a case, the worker was doing the work in the way which the employers expected him to do it and, if the employer had taken proper safeguards, the accident would not have happened (see paragraphs 10, 11 and 52).

14.   In Mak Woon King & Anor v. Wong Chiu t/a Wong Chiu Kee Timber [2000] 2 HKLRD 295, 302C-I, the Court of Appeal found that where a breach of statutory duty by an employer was a substantial cause of injury to an employee, the fact that the employee contributed causally to the accident by his own momentary inadvertence or lack of care may not constitute contributory negligence or may operate to lessen the percentage by which the award was reduced.

15.   In the present case, the accident occurred because the plaintiff carried out the fluorescent tube repair work on a wooden ladder and not a working platform. At the end of the day, it was firstly because no working platform was stored at Manly Plaza; and secondly, the first defendant provided no supervision to remind the plaintiff before he started work that he should pay attention to safety when working at a height, should carry out the work on a working platform and should arrange to have the working platform delivered to Manly Plaza. Therefore, the primary cause of the accident was the failure of the first defendant to provide proper supervision and not the plaintiff’s wilful disregard of safety when he was fully aware of the danger. The fault of the plaintiff was only to the extent of working at a height on a wooden ladder for convenience and expediency. Just as the quote in Charlesworth & Percy on Negligence (2006, 11^th Edition) para. 11-66[2] cited in paragraph 52 of the Court of Appeal judgment in Ng Tim Yip Kevin (formerly known as Ng Tim Yip) v Chan Ho Kin (formerly t/a Kenny’s Engineering Company formerly known as Kenny’s Company) (CACV 285/2007, 23.10.2008) indicated: In employment cases, a distinction has to be drawn between the situation where there has been momentary inattention on the part of an injured employee and the conscious acceptance of a risk by an employee.

16.   The extent of the plaintiff’s negligence fell far below that of the situation in the cases of Chan Kin Ka and Chak Hung accepted by the Deputy District Judge. In the case of Chan Kin Ka, the worker, knowing that the pair of protective goggles was defective and yet did not ask the foreman for a new pair, was injured when his left eye was hit by a piece of wire. The court assessed his contributory negligence at 40%. In the case of Chak Hung, a technician, wearing no protective goggles, used an ill-chosen nail which blinded his right eye when it flew off and hit the eye. The court assessed his contributory negligence to be at two thirds.  There exists in these two cases conduct of workers who were fully aware of the dangers and yet neglected their own safety wilfully, a situation that does not exist in the present case. These two authorities are therefore not applicable to the present case. Similarly, the cases of San To Po Yuk v Wing Kwong Painting Co Ltd [2004] 2 HKLRD 169 and Wong Wing Chow v Lee Wing Hang Patrick t/a Wing Shun Construction Company (HCPI 244/2002, 24.10.2003) cited by Ms Au, counsel for the second defendant, are also not applicable as they differ from the present case in that the workers in them, in disregard of their own safety, climbed up and down a ladder not in a proper way.

17.   In our view, the situation in the present case was more similar to that in the other cases Ms Au cited: Limbu Netra Kumar v Yau Lee Construction Co Ltd & Anor (HCPI 234/2002, 25.4.2007); Yu Pun Yuen v Ng Kwan Man t/a East Mountain Engineering Company & Ors (HCPI 293/2002, 9.5.2003) and Ho Chong Peng and Yue Hin Engineering Company (HCPI 1025/2004, 1.12.2005). All three cases concerned workers falling from height while working at a height and got injured. In Limbu Netra Kumar, the worker, not bothered to take the trouble of covering a distance of about 20 metres to fetch a wooden ladder from a store room, climbed up the metal tubular scaffold which was used to support the roof slab of the floor directly above to carry out work at height. The employer was aware of this but chose to turn a blind eye. At the time of the accident, the metal scaffold became wet and slippery because of rain. The worker slipped and fell to the floor. The court assessed his contributory negligence at 30%. In the case of Yu Pun Yuen, while an air-conditioning worker was on the way back to the floor from a wooden folding ladder, the ladder tipped over backwards and he fell off it. Before he climbed down the wooden ladder, he did not check to see if the colleague who had been holding the ladder to steady it for him earlier was still holding it. In the view of the court, it was pure carelessness on the part of the worker and it assessed his contributory negligence at 20%. In the case of Ho Chong Peng, a closed circuit television cameras installation worker fell to the ground when the ladder he was on broke. Before the accident, his employer had told him to buy a new ladder but he did not do as told. He did not check if the ladder was safe either before using it. The court assessed his contributory negligence at 20%.

18.   In the present case, the main cause of the accident was because the first defendant did not provide proper supervision and breached statutory duty. The plaintiff, as a matter of convenience, carried out the work at a height on a wooden ladder, and, instead of using a pair of pliers, used an electric tester screwdriver to adjust the bracket of the fluorescent tube, and should therefore be held liable of contributory negligence. Mr Cheng, counsel for the first defendant referred us to paragraph 52 of Ng Tim Yip which pointed outthat if the employee is skilled and the precaution which would have avoided the accident complained of is a simple one, he can properly be required to bear a greater level of contributory negligence. Mr Cheng considered it correct for the Deputy District Judge to assess the contributory negligence at 50%. We do not agree to this submission. Although the plaintiff had had more than 20 years’ working experience and had basic knowledge of occupational safety, the working platform of the first defendant was a mobile one and it was not stored at Manly Plaza; to use it would require that the component parts be delivered to Manly Plaza to be assembled by people to be arranged. This cannot be regarded as a simple precaution that can be arranged anytime. In all the circumstances of the case, the extent of contributory negligence of the plaintiff should not be more than 25%. It is true that, in general, the Court of Appeal will interfere with the apportionment for contributory negligence the lower court made only in exceptional cases: Wishing Long Hong v Wong Kit Chun [2001] 4 HKCFAR 289. In view of the apportionment for contributory negligence the Deputy District Judge had assessed, that is 50%, is one that far exceeds the reasonable range, this Court should set it aside and substitute with 25%.

Compensation for loss of earning capacity

19.   In the judgment of Deputy District Judge Chan, the plaintiff was awarded the following damages (before deductions for contributory negligence):

(1) Pain, suffering and loss of amenities (PSLA)	$160,000.00
(2) Pre-trial loss of earnings	72,797.00
(3) Damages for loss of earning capacity	0.00
(4) Special damages	4,290.00
(5) Future medical expenses	0.00
Total:	237,087.00

20.   In the Revised Statement of Damages submitted by the plaintiff on 13 November 2009, he set out his pre-trial loss of earnings in paragraphs 23 to 26. He was claiming for the loss of income and mandatory provident fund during sick leave. The Deputy District Judge accepted this item of claim in principle, only that he adopted what the second defendant said were the actual dates of the sick leave (3 December 2004 to 26 May 2005) as the basis for calculation to arrive at the amount of $72,797. The plaintiff did not appeal against this.

21.   In paragraphs 27 to 31 of the plaintiff’s Revised Statement of Damages, he made the claim for loss of earning capacity. In paragraph 28.1, he claimed that the first defendant terminated his employment on 31 March 2006 because after the accident, he was not able to lift heavy objects and the aftermaths of the accident rendered him unable to perform to the satisfaction of the first defendant. The plaintiff also claimed that the injuries rendered him unable to find another job since termination and that his health condition has put him in an inferior position in the job market. For this, the plaintiff claimed $150,000 as damages for loss of earning capacity.

22.   The Deputy District Judge refused to award the applicant damages for loss of earning capacity. He pointed out in paragraph 24 of the judgment:

‘24. Regarding compensation for the plaintiff’s loss of earning capacity, the plaintiff stated that since Poon Leung Hay (transliteration), an employee of the first defendant had been in continuous employment of the first defendant after the age of 65, he should therefore be employed until the age of 70. In reply, Chiu Hon Man (transliteration), witness of the first defendant, said that the normal retirement age of the first defendant’s employees was 65. Poon Leung Hay should have retired at the age of 65. The first defendant made an exception to continue to employ him because Poon’s wife had just given birth to a baby. I am of the view that at the time of the accident, the plaintiff was already over 61 years old, and at the time when this court tried the matter, he was already 67, putting him beyond the retirement age of 65 for the technicians employed by the first defendant. Moreover, according to the unchallenged testimony given by Chiu Hon Man, the plaintiff was laid off as a result of the first defendant’s reorganization, not because of his impaired work ability after the accident. I therefore find that the plaintiff should not be awarded this item of damages.’

23.   In paragraph 40 of the plaintiff’s witness statement, he said the first defendant terminated his employment because he was not a competent repairman after the accident. He gave examples in support of this. However, it was stated in the termination of employment letter the first defendant gave the plaintiff that the contract was terminated because of the personnel reshuffle of the company. In paragraph 13 of Chiu Hon Man’s witness statement, he stated that the first defendant had intended to terminate the employment of the plaintiff as early as before the accident for his unsatisfactory performance; the termination was not carried out because of the accident. Later, due to the reorganization of the company, the plaintiff’s contract was therefore terminated on 31 March 2006. The employment of another employee was also terminated at the same time due to the reorganization. It can be seen in paragraph 24 of the judgment that the evidence of Chiu Hon Man, witness for the first defendant, was not challenged during the trial. In what circumstances the employment of the plaintiff was terminated was a finding of fact; the Court of Appeal should only intervene in a finding of fact when the trial judge’s conclusion on the facts was plainly wrong: Ting Kwok Keung v Tam Dick Yuen [2002] 5 HKCFAR 336. The submission of the plaintiff failed to show that this finding of Deputy District Judge Chan was plainly wrong. This Court therefore has no basis to intervene.

24.   Nevertheless, whatever the reason the first defendant terminated the employment of the plaintiff was, the crux of the matter was: was there any evidence and legal basis during the trial in support of the plaintiff’s claim for damages for loss of earning capacity? Both Mr Cheng and Ms Au pointed out that the plaintiff claimed compensation for the loss of income from the termination of employment to the age of 65 in his appeal, but such claim was not made in his Revised Statement of Damages. It was too late for the plaintiff to make this item of claim only during appeal. We agree to this submission.

25.   Nevertheless, both doctors appointed by the plaintiff and the first defendant pointed out that although the plaintiff could continue to do the maintenance/repair work of a plumber/electrician, his work ability and efficiency were diminished and restricted (see paragraph 41 of Doctor Kong Kam Fu James’ report dated 3 December 2004 and paragraph 74 of Doctor Chun Siu Yeung’s report dated 30 July 2007). In paragraphs 41 to 43 of his witness statement, the plaintiff mentioned that he tried to seek employment in November 2006 but was not employed due to his inability to lift heavy objects. He had also registered with the Labour Department for job placement but was not given any interviews. The plaintiff also mentioned that he had no skills or work experience in other trades apart from those in plumbing and electricity repair and maintenance work. In our view, the above evidence indicates that the work ability of the plaintiff was impaired after the accident, and he had difficulties finding work after his employment was terminated. These go to support his claim that the injuries put him in an inferior position in the job market. The Deputy District Judge refused to grant the plaintiff damages for post-trial loss of earning capacity on the ground that at the age of 67, he was beyond retirement age at the time of the trial. He however failed to take into account the loss the plaintiff suffered before he had reached retirement age. On the basis of the aforesaid evidence, this Court feels that the plaintiff should be given a lump sum compensation to reflect the disadvantage he suffered for being in an inferior position in the job market as a result of the injuries sustained in accident. In view of the fact that the plaintiff was almost 63 years old when his employment was terminated, even if he was not injured in the accident, his competitiveness was very limited. Adopting 6 months as the basis for calculation, this Court awards $72,000 (that is $12,000 x 6 months) to the plaintiff as damages for pre-trial loss of earning capacity.

Future medical expenses

26.   In paragraph 36 of his Revised Statement of Damages, the plaintiff claimed $10,800 to cover the expenses for the physiotherapy he would receive in future. The Deputy District Judge pointed out in paragraph 26 of his judgment that since the injuries of the plaintiff had stabilized, very little improvement could be gained from further sessions of physiotherapy. Besides, since the plaintiff could carry out the relevant treatment himself at home, he therefore refused to allow his claim for future medical expenses.

27.   The plaintiff listed out $10,000 for ‘future medical expenses’ in his appeal document but did not elaborate on it. Nor did his submission in any way show that the Deputy District Judge’s finding on this item of claim was wrong. We note that the plaintiff has not paid further visits to the Pamela Youde Nethersole Eastern Hospital for physiotherapy since 22 February 2006 (see letter from the Hospital dated 30 January 2007). We hold that the plaintiff’s appeal in this regard fails.

Conclusion

28.   In light of the above reasons and analysis, we allow the appeal of the plaintiff. The compensation he can get in this case is increased to $231,815.25 less the employee compensation that he had already received. The calculation is as follows:

(1) PSLA	$160,000.00
(2) Pre-trial loss of income	72,797.00
(3) Damages for loss of earning capacity	72,000.00
(4) Special damages	4,290.00
(5) Future medical expenses	0.00
Sub-total	309,087.00
(6) less contributory negligence 25%	77,271.75
Total	231,815.25

29.   In line with the usual practice, costs are to follow the event. Costs of this appeal are therefore to the plaintiff. We make a costs order nisi: The first and the second defendants shall pay the plaintiff $5,000 as the costs of this appeal. This order shall automatically become absolute if the parties do not apply to the court for its variation within 14 days of the handing down of this judgment upon the expiry of the aforesaid 14 days.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law