LAM YAU v. SHUN SHUNG CONSTRUCTION & ENGINEERING CO LTD AND ANOTHER

1990 No. A1560

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is a fatal injury action brought on behalf of the dependants of the deceased under the Fatal Accidents Ordinance (Cap.22) ("FAO") and of the deceased's estate under the Law Amendment and Reform (Consolidation) Ordinance (Cap.23) ("LARCO"). The plaintiff is the mother of the deceased and administratrix of his estate.

2. The deceased was 17 years of; age at the time of his death and employed by a gang of air-duct fitters, who were employed as the sub-contractor of Shun Hing Engineering Company, who were in turn employed by the 2nd defendant, who were sub-contractors of the 1st defendant. The 1st defendant was the principal contractor at, the construction site of a new government building in Wanchai, now occupied by, inter alia, the Immigration Department. The 2nd defendant was the nominated air-conditioning sub-contractor on the site.

3. The gang which employed the deceased, led by Mr. CHAN Chu-wu, P. W. 3, commenced work on the site on or about 9 May, 1988, and the deceased joined the gang at that time. There is no evidence that the deceased had ever worked on a building site before this.

4. On the afternoon of 11 May, 1988, the gang was working on the 10th floor of the building. The deceased was asked to fetch an item from the 7th floor, where the gang's materials were stored, and was last seen by members of the gang turning a corner in the direction of the staircase. When the deceased had failed to return by the time they finished work, the other members of the gang went in search of him. The deceased was found lying on the ground at the ground floor of the building. There were no signs of life, and a post-mortem examination showed that death was due to multiple injuries.

5. The deceased was found lying directly beneath an opening about 1 m. by 1 m. in the ceiling. A similar opening occurred on each floor of the building in the same position, up to the 11th floor. The rooms containing the openings were known as Air Handling Unit (AHU), Switch Room B. In due course, the openings would carry an air-conditioning duct.

6. The Statement of Claim alleges that the accident was caused by negligence and breach of statutory duty on the part of the 1st defendant. The 2nd defendant was added to the Writ after the 1st defendant commenced Third Party Proceedings against the 2nd defendant, and the Statement of Claim adopts against the 2nd defendant the allegations of negligence and breach of duty made by the lst defendant against the 2nd defendant in the 1st defendant's Defence to the action.

The Evidence

Liability

7. On the issue of liability, the plaintiff called three witnesses: P. W. 1, a factory inspector, and P. W. 2 and P. W. 3 who were members of the gang for which the deceased worked. The first defendant called one witness who at the relevant time was the 1st defendant's general foreman on the site.

8. P. W. 2 and P. W. 3 impressed me as truthful witnesses, trying to give me the best of their recollection of events four years ago. I believed their evidence. They both told me that, although they had been working in the building since about 9 May, they were unaware of the existence of the openings in the floors of the switch rooms until after the accident. I am sure the deceased shared their lack of knowledge.

9. At the time of the accident, P. W. 3'S gang was working on the 10th floor. P. W. 3 asked the deceased to fetch something from the 7th floor and he saw the deceased turn the corner towards the staircase. There was no reason whatever why the deceased should have gone upstairs and I am satisfied he went downstairs. Before the deceased left, he asked where he could get tissue paper or toilet paper and someone replied that there was newspaper.

10. From the evidence of the factory inspector P.W. 2, P. W. 3 and the defence witness it was clear that the practice of construction sie workers finding a dark corner to relieve themselves is common in Hong Kong.' The factory inspector found "human waste" scattered to the left of the door of the switch rooms on every floor from the 1st to the 9th. There were only 2 toilets on the site, on which were working over 200 men, situated on the ground floor.

11. The factory inspector said that there was no artificial lighting in the switch rooms, and that the rooms were gloomy compared to the natural lighting on the floor outside. She found that she was able to see inside the rooms once her eyes adjusted to the gloom. As one entered the switch room, the opening in the floor was about 10 feet to the left.

12. I am satisfied that when the deceased left the 10th floor he went downstairs intending to defecate, and went inside one of the switch rooms for that purpose. The factory inspector found bloodstains on the wall face around the floor opening on the 6th floor, and on two lower floors.

13. P. W. 3 told me that when he searched for the deceased using a torch he looked at the floor openings on the 10th, 9th, 8th and 7th floors, and that there was no covering on the opening and no fencing around it on each floor. According to the factory inspector, next day that was the situation on the 10th, 9th and 8th floors, but that from the 1st to 7th floors the opening was "either partially covered up or fenced".

14. On all the circumstantial evidence, I am satisfied that the deceased fell to his death through the uncovered and unfenced opening in switch room B on either the 8th or 9th floor of the building.

Liability of the 1st Defendant

15. It is common ground that the 1st defendant was the principal contractor on this building site. By regulation 2(2)(a) of the Construction Sites (Safety) Regulations,the 1st defendant was therefore "a contractor responsible for a building sites regulation 38P provides:-

(1) The contractor responsible for a construction site shall ensure that every opening .... through or from which any person on the site is liable to fall a distance of 2 metres is provided with either-

(a) a suitable guard-rail .... so erected as to prevent as far as possible the fall of persons; or

(b) a covering so constructed as to prevent the fall of persons ...."

16. The 1st defendant was well aware of the need for such guard-rails or coverings at the opening in the switch rooms. The 1st defendant's witness explained that a factory inspector had advised the use of guard-rails and covering of the nature illustrated in 1st defendant's Further and Better Particulars.

17. I am satisfied that the deceased's death was the direct result of the '1st defendant's failure to comply with its statutory duty under regulation 38P, and that the 1st defendant is therefore liable in damages for the death. Quite apart from the regulation, I am satisfied that, at Common Law, the 1st defendant is liable in negligence for the death.

18. In view of these findings, it is academic to deal with the questions the 1st defendant's liability under the occupiers' Liability Ordinance, but in view of the time devoted to this issue in submissions, I shall do so.

19. Miss Cheng argued on the 1st defendant's behalf, and the argument was adopted by Mr. Ho on behalf of the 2nd defendant, that the deceased was a trespasser when he entered switch room B, because the gang's work was confined to an area of the outer floors of the building, there being no reason for gang members to enter switch room B at all, particularly for the purpose of relieving themselves. In addition to being in breach of regulation 38P, I am satisfied that the 1st defendant was in breach of regulation 55 in not providing "sufficient and suitable latrine .... conveniences". Two toilets on the ground floor on a site which went up to 14 floors, with over 200 men working on it,' and with no passenger lift, is not in my opinion compliance with the regulation. The 1st defendant's witness well knew of the practice of the workers relieving themselves in some dark corner. I am driven to the conclusion that the 1st defendant accepted the use of the switch rooms as toilet facilities by the workforce, rather than go to the trouble and expense of providing proper facilities, though it is fair to add that the 1st defendant's witness did say that toilets were under construction at the time.

20. I am satisfied in all these circumstances that the workers did not become trespassers in resorting to a practice condoned, and made virtually inevitable on the part of workers on the higher floors, by the contractor responsible for the site.

21. Miss Cheng advanced another argument for the proposition that the deceased was trespasser, based upon a term of the contract between the 1st defendant and the 2nd defendant. Clause 9 provides:',

"The Sub-contractor shall not sublet the Sub-contract works or any part of the same without the written consent of both the Contractor and the Employer ...."

22. The 2nd defendant certainly had sub-let part of the contract works to Shun Hing Engineering Co., who had in turn sub-let to the gang for which the deceased worked. However, I agree with both Mr. Pritchard and Mr. Ho that the evidential basis for the proposition that there was no written consent to the sub-letting just isn't before me. The only evidence touching on this point came from Miss Cheng's sole witness, the former general foreman of the site. Asked by Miss Cheng whether any written consent had been given by the 1st defendant to the 2nd defendant to sub-let work, Mr. To said "I didn't see it". Asked whether if there was such consent he would expect to be told about it, he said that if it happened he would expect to be informed what contractors would be going into the site, and that he hadn't received such information.

23. In my view, the 1st defendant could easily have called an officer responsible for sub-contracting to say one way or the other whether written consent had been given. In the absence of such evidence, I reject this argument that the sub-contractors' workers have been shown to be trespassers.

Liability of the 2nd Defendant

24. There is no question of the 2nd defendant being liable under regulation 38P, as that liability rested squarely upon the 1st defendant. Furthermore, it is clear on the evidence that the 2nd defendant was not an "occupier" of the building, although there can be situations where there are joint occupiers. Miss Cheng argued that because the relevant floors had been "handed over" to the 2nd defendant for air-conditioning work to be done, the 2nd defendant became the "occupier". The question of who is an "occupier" for this purpose is dealt with in Clerk and Lindsell on Torts, 16th Edition, at para. 13-06. I am satisfied that the test is one of control. Miss Cheng's own witness destroyed the 1st defendant's argument that control had passed to the 2nd defendant, by confirming when cross-examined by Mr. Ho that control of access to the whole building site definitely remained with the 1st defendant.

25. However, I am satisfied that the 2nd defendant is liable in negligence for the deceased's death. The 2nd defendant, as nominated air-conditioning sub-contractor, had brought onto the site the sub-contractor who in turn brought there the deceased's gang. The 2nd defendant not only knew about, but was actively concerned about, inter alia the floor openings. In a letter to the 1st defendant dated 23rd May, 1988, from the 2nd defendant concerning this accident, the 2nd defendant said:-

    "We refer to the case and the advices and reminders that we have given repeatedly to your site staff to urge them to provide adequate lighting on the site and cover up floors openings etc. Regrettably there has been no action taken.

    The occurrence of this tragedy has proved that our concern is valid and it is not just for our own employees' safety but that of everyone on the site."

26. Although written some 2 weeks after the accident, in my view the use of the words "proved that our concern is valid", makes it clear that what is being referred to are "advices and reminders" before the "tragedy". I agree with Mr. Pritchard that it was just not good enough for the 2nd defendant to complain to the 1st defendant about the situation. The dangers were so obvious to the 2nd defendant that it should have taken its own measures to protect workers, or withdrawn them from the site until the 1st defendant took the necessary action. It is obvious to me, and I believe to all counsel in the case, that what should have been done is that the switch rooms should have been boarded up - as the lift shafts were.

Contribution between the 1st and the 2nd Defendants

27. In view of my finding that the 1st and the 2^nd defendants are both liable in respect of the deceased's death, it is necessary for me to assess the amount of contribution to be made by the defendants, pursuant to the Civil Liability (Contribution) Ordinance, Cap. 377. By section 4 of the Ordinance, the contribution "shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question".

28. Miss Cheng did not suggest appropriate proportions. Mr. No submitted that, if I did find the 2nd defendant liable, the 1st defendant was "much more to blame", and that the 2nd defendant's proportion should be no more than 25%.

29. I agree that the 1st defendant had the primary responsibility for the deceased's death. I assess the appropriate contributions as being 80% by the 1st defendant and 20% by the 2nd defendant.

Contributory Negligence by the Deceased

30. Both defence counsel submitted that I should find contributory negligence on the part of the deceased, whereas Mr. Pritchard urged me to find that none existed. Mr. Pritchard argued that the boy could not be blamed for going into a darkened room, as he certainly wouldn't be going into a well-lighted one for the purpose he had in mind, and asked me to bear in mind the boy's age and inexperience. I must say I have great sympathy with that submission. Clearly, the deceased having walked into the switch room continued walking before his eyes adjusted to the gloom. In doing so, he walked into the opening. Although he couldn't be expected to anticipate the hazard that he encountered, I don't think it unreasonable to consider that he should have anticipated that there might be some danger in walking in a darkened area on a building site. He could, for example, have fallen over tools or building materials and injured himself. Had he done that, I hardly think it could have been said he was completely blameless.

31. I am driven to the view that there must be a finding of some degree of contributory negligence, but that it was a very small contribution. I assess the deceased's contributory negligence at 5%

Assessment of Damages

FAO Award

32. In the. writ, the dependants were claimed to be the mother and father and all three brothers, but the evidence showed that the father and the two older brothers worked and contributed to the family budget. The dependants are therefore the mother and younger brother only. The mother was 43 at the time of the accident. I shall adopt a multiplier of 10. The pre-trial period is 50 months.

33. Valuable information about the deceased's wages and prospects was given by Mr. Chan. At the time of the accident the deceased earned $130 per day. He gave all his wages to his mother and was given back $30 per day (I assume this was per working day) out of which he paid his expenses and bought clothes with any balance. His wages would have increased by $35 per day each year, until reaching a maximum of $270 per day at trial. Thereafter his annual wage increase would probably have been based on inflation alone. Allowing for gaps in employment, e.g. between contracts, his average working week would have been 24 to 25 days. I shall adopt a figure of 24.5 days.

34. The younger brother was 15 at the time of the accident and in education. Both full-time and part-time education ceased a year ago, and during that year the boy has not worked. No clear reason was given for this and although in evidence, he said he intended to resume education, he had no firm plans as to what sort or when it would start. In my view, the likelihood is that he will start work. I shall consider his dependency ceased at trial.

35. There was a lack of the usual information about rent and other household expenses, and it was common ground between counsel that whatever dependency figure is reached, it should be split equally between mother and brother.

36. I shall assume that the practice of the deceased giving all his wages to his mother with pocket money returned would continue until trial, with the deceased getting an increase in daily pocket money keeping pace with inflation of 10% per annum. I shall adopt Mr. Ho's suggestion that of the monthly sum given to the mother, the benefit to the deceased would be $30 per day, rising at the same inflation rate.

37. Pre-trial loss of dependency:

Contribution at the date of the accident would have been $3,185 (24.5 x $130), less $735 (24.5 x $30) and $900 (30 x $30) = $1,550.

Contribution at trial would have been $6,615 (24.5 x $270) less $1,076 (24.5 x $43.92), less $1,317 (30 x 43.92) = $4,222.

The median figure which I shall use is $2,886.

38. The total pre-trial dependency, to be shared equally between mother and brother, is $144,330 ($2,886 x 50) I have thus adopted Mr. Ho's suggested figure.

39. Post-trial loss of dependency - mother only:-

The practice of the two older brothers is to give their mother "a little over $2,000 per month", say $2,200. I see no reason why the deceased would not have adopted the same practice at, for the sake of convenience, the time of trial and that, thereafter, his contribution would have kept pace with inflation running at, say, the same rate as up to trial, 10% per annum, giving a monthly contribution at the end of the remaining 70 (10 x 12 - 50) months dependency of say, $3,220. The median figure is $2,710.

40. The mother's post-trial dependency is therefore $189,700.

41. It was common ground that the statutory award be made for bereavement in the sum of $70,000. This sum to be shared equally by the mother and father.

Award under LARCO

42. It was common ground that special damages of agreed funeral expenses of $17,132 should be awarded and I do so.

43. Mr. Pritchard asks me to make an award for "loss of accumulation of wealth" under section 20 of the ordinance. There is no evidence of a savings pattern prior to death, on the contrary the deceased's bank books show no savings to speak of, and since the boy was giving all his earnings to his mother he had no realistic opportunity to save so long as that practice continued. I was referred to cases relating to similar situations where the judge/master made an award on the basis of notional savings of 10%, and other cases where such an approach was rejected and no award made. An editor's note in the Hong Kong Law Journal (1991) at page 400 refers to "the tendency for the Master to adopt, with the new 'accumulation of wealth' claims, the 10% net . savings rule". Perhaps the time has come for this to become a "conventional" award. Miss Cheng's position was that there should be no award of the type made at all. Mr. Ho generously agreed an award should be made at 10% for the whole of the multiplier period, which he suggested be 17 years. Even Mr. Pritchard conceded this was too generous, and suggested the period commence now.

44. I am satisfied that once the deceased started keeping his own wages, and giving his mother the monthly sums mentioned earlier, he would indeed have been able to start saving. Furthermore, I am satisfied that he would in fact have done so, as all the evidence indicated an intelligent and sensible person.

45. I shall adopt a multiplier of 17 years for the deceased, but the award will be based on the post-trial period. The figure I award is ($6,615 x 10% x (17 x 12 - 50) $101,871.

46. The total award will therefore be:-

FAO

LARCO

47. This figure will, of course, be subject to the 5% deduction for contributory negligence. There will also need to be a deduction of $212,308 in respect of the Employees Compensation award, which I am told has already been paid.

48. Interest on the special damages will be at 5% from the date of death until judgment and interest on the general damages at 2% from the date of the writ until judgment.

49. I make a costs order nisi in favour of the plaintiff to be taxed if not agreed. The plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.

After hearing counsel further, I order that, as between the defendants, the first defendant pay 80% of the Plaintiff's costs and the second defendant 20%.