LAM FUNG YING AND ANOTHER v. LUI KWOK FU

HCPI 826/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 826 OF 2002

_____________________________

J U D G M E N T

_____________________________

1. This is a claim for damages arising out of a fatal industrial accident which took place on 12 February 2001. Mr. Poon Kwok Yam ("the deceased") was working on a scaffold erected at the external wall of the premises surrounding the balcony of the flat at Room G, 8th Floor, Block 4, No. 20, Yuet Wah Street, Kwun Tong, Kowloon ("the premises"). The scaffold was erected by the third party. In the course of his work which involved demolition of metal cages and metal brackets on the external wall of the premises the deceased fell to his death through an opening in the scaffold onto the podium on the ground floor level. The plaintiffs bring this claim against the defendant for damages under the Law Amendment and Reform (Consolidation) Ordinance Cap. 23 and the Fatal Accidents Ordinance Cap. 22.

2. The plaintiffs allege that the defendant was the contractor responsible for the construction site and that the accident was caused by the defendant's breach of statutory duties and negligence. The plaintiffs also allege that the deceased was an employee of the defendant and that the defendant was in breach of his duties as employer in failing to provide a safe place of work to the deceased. The defendant denies that the place of work was a construction site and that he owed any statutory duty to the deceased. It is further denied that the deceased was an employee of the defendant. It is the defendant's case that at the material time the deceased was a partner of the defendant.

3. The third party was the contractor who erected the scaffold at the external wall of the premises. The defendant's third party claim against the third party is for an indemnity and/or contribution in respect of the plaintiffs' claim.

4. At the commencement of the trial I ordered that the plaintiffs' main action should be tried at the same time as the third party claim. The trial proceeded on that basis.

5. I heard evidence from Madam Lam Fung Ying ("Madam Lam"), the 1st named plaintiff, who is the widow of the deceased. I also heard evidence from the defendant and from the third party.

6. The deceased was aged 35 at the date of death on 12 February 2001. e He was born in the Mainland on 2 October 1965 and came to Hong Kong in 1982. He married Madam Lam in 1988. The deceased had been working as a painter for the same employer for 16 years from 1982 to 1998 and received a steady monthly income of about $12,000 during that time. However, he was laid off in 1998 and since then he worked as a construction worker for various employers. On average he earned about $3,500 per month as Madam Lam said that he earned about $500 per day an d he worked only about 7 days a month. After the deceased was laid off in 1998 the deceased received public assistance to supplement his income. At the time of the accident the family was in receipt of $8,000 monthly public assistance. The above facts were undisputed and I find the same proved.

The accident

7. There was no evidence as to how the deceased fell from the scaffold whilst working thereon. The parties were content to rely on the agreed documents.

8. Mr. Chan Kut Wah ("Mr. Chan") of the Labour Department in his fatal accident report dated 27 April 2001 observed that the deceased was last seen working on the working platform immediately behind the balcony at side C of Section II of the scaffold as shown in the sketch attached to his report. This was as reported by the defendant.

9. Mr. Chan further observed that the bases of the working platform were not closely boarded. The bases and lower inner sides of the working platforms were just overlaid with plastic sheets. These sheets had been fastened to the bamboo members by wires. A piece of plastic sheet at the said side C of the working platform was found detached and to have fallen down to the base of the working platform. A void of dimensions 75 cm (height) X 95 cm (width) was therefore created as shown in the sketch. Mr. Chan observed that the defendant reported that prior to the accident he did see the deceased squat on the working platform near the uncovered void to cut the metal rack affixed to the fence of the balcony with a portable electric cutter. Mr. Chan was of the view that it was reasonable to believe that when the deceased was performing his job on the working platform, he somehow lost his balance and fell through the void space resulting in the fatal accident.

10. There was no evidence as to why and how the deceased fell. However, it is reasonable to infer that he did fall through the void at the said side C. It is highly likely that immediately before he fell he was working at the said side C. The deceased was found lying on the podium below that area. Why he fell is not clear. In my view, it is likely that he lost his balance and fell through the void in the scaffold and I so find. As a result of this he sustained his fatal injuries.

Was the deceased a partner or employee?

11. This was in issue between the parties. The plaintiffs' case is that the deceased was an employee of the defendant whilst carrying out the demolition works at the external wall of the premises. The defendant's case is that he was a partner of the deceased and not an employee.

12. The defendant gave evidence that he was the sole proprietor of Wah Fu Construction Decoration Works Co. ("Wah Fu") which commenced business in 1998. He said that before 1998 he was a casual worker doing carpentry and wood work. He said that he had no experience in demolition of metal cages and metal work. He had known the deceased since 1996 and they were good friends and partners. He said that for the work that he did with the deceased he would share the money received in the ratio 50:50. This was in respect of three jobs for dismantling metal cages and metal related jobs and for other smaller jobs. He denied paying the deceased $500 per day. He said that he first started dismantling cages in 1999 with the deceased as a partner. Then the second job was in the same building where the accident occurred but on another floor, namely the 10th floor. This was a job for dismantling flower cages and making kitchen cupboards. He said that he was not familiar with the work of dismantling flower cages as he had never dismantled a metal cage before the job on the 10th floor but the deceased was familiar with that type of work. He also said that the deceased was the one who mainly supervised the dismantling job.

13. The defendant said that the working platform for the job on the 10th floor was erected by the third party. He came to know the third party as the deceased had given the third party's name card to him.

14. The defendant said that after he got the third party's business card and was told to call the third party, he did call him up and told him that the deceased had introduced him. However, the third party said in evidence that he did not know the deceased and that he did not put up the scaffold for the 10th floor job although his colleagues might have. I believe the third party and accept his evidence. I prefer his evidence to the evidence of the defendant.

15. The defendant said that when he and the deceased were working on the 10th floor the owner of the premises came in and asked him to take up another job on the 8th floor of the same building. He said that the owner came in and asked if they wanted to do the job which was to demolish flower cages and he said that the deceased said 'yes'. Then he and the deceased accompanied the owner down to the premises on the 8th floor. He also said that in the presence of the persons there, which included the tenant Ms Siao, he said that he and the deceased were partners. He said that he and the deceased decided to take up the job at the premises initially for $23,000. Later the owner asked for additional work to be carried out to install an aluminium window at the balcony of the 8th floor and the price for the job was increased to $35,000.

16. In cross-examination the defendant said that it was the god-son of the owner of the 8th floor premises who had contacted him and the deceased when they were working on the 10th floor. He denied that he was the one who went down to the 8th floor. However, it is clear to me that the defendant's account cannot be relied on. He gave evidence inconsistent with his witness statement as he said in evidence that the business card of the third party was given to him by the deceased before the job on the 10th floor commenced. He contradicted para. 8 of his witness statement where he said that it was only after the owner of the premises on the 8th floor had agreed to his quote of $23,000 for the job that the deceased gave him the third party's business card. This must have been after the job on the 10th floor had commenced and was in progress.

17. It is not disputed that the defendant contacted the third party to erect the working platform for the job. He gave him the measurements so that the scaffolds could be erected. The third party then erected the scaffolds. After this was completed he asked the third party whether they could go out to work on it and he was told that it was safe to do so.

18. It is not disputed that the deceased and the defendant were both working on the job at the premises on 12 February 2001. They had brought along three pieces of electrical equipment which included an electrical cutter which the defendant said belonged to the deceased.

19. In the defendant's statement to the Labour Department made on 13 February 2001 he told the officer that it was at about 9 am on 10 February 2001 that he suggested that the deceased take up the project at the 8th floor by way of partnership and that at that moment the deceased said fine. He confirmed in evidence that what he told the Labour Department was true. He also confirmed in evidence that he was the one who spoke to the owner of the flat on the 8th floor and that he was the one who gave her the quotation dated 7 February 2001. It seems to me that by that date, on his own evidence and statement to the Labour Department, the deceased had not even been approached to do the job. The defendant only approached the deceased on 10 February 2001 which was two days before the accident to assist him in the works on the premises.

20. The defendant also agreed with Mr. Tang that from what Ms Chan the owner of the flat had told the Labour Department it appeared that the defendant was the sole contractor responsible for the project. On the evidence before me, it is also clear that it was the defendant who gave the requirements to Mr. Lam Man Tai of Teemway Engineering Ltd. ("Teemway") the specialist contractor, to remove the asbestos sheets from the external wall of the premises so that a quotation could be supplied. He was also the one to give the details of what was required from the third party so that a quotation could be provided. He was also the person to decide whether to accept or reject the scaffold. On his evidence it was only on 10 February 2001 that he engaged the deceased to participate in the work. By that date, however, the scaffolding had already been erected and the asbestos sheets had been removed by Teemway. By that date only demolition works remained to be done. The defendant agreed that all the prior arrangements, the co-ordinating with the contractors for scaffolding and removal of asbestos sheets had been done by him and completed by him.

21. The defendant also gave evidence that before the completion of the bamboo scaffolding, which must have been on or before 6 February 2001, the deceased had complained about the density of bamboos. According to him, the third party had told him that he didn't have enough bamboos. Nevertheless, he accepted the scaffolding from the third party after the same had been erected. This was denied by the third party. I believe the third party and disbelieve the defendant. The defendant never mentioned this alleged complaint of the deceased in his witness statement or in any of his previous statements in the bundle. This evidence is also contradicted by his admission that it was only on 10 February 2001 that he asked the deceased to assist in the works on the premises.

22. During cross-examination the defendant also said that he discovered that in the morning of the day of the accident the canvas had already been detached from the scaffolding. This was before the deceased worked on the scaffold in the afternoon. He later said in evidence that he was unsure whether the canvas had been detached in the morning. He later contradicted this in evidence and said that he saw the deceased in mid-air holding onto the canvas thereby suggesting that the canvas only became detached when the deceased fell. This was, however, never mentioned by him before in his evidence or in any of his statements. The defendant contradicted his previous statements.

23. Madam Lam gave evidence that two days before the accident which took place on 12 February 2001 the deceased mentioned to her that the defendant had engaged him for the project. That evidence was not challenged and is consistent with the defendant's admission that it was only on 10 February 2001 that he approached the deceased to assist him in the works at the premises. The deceased had previously undertaken work for the defendant before the job in February 2001 and the deceased had told her that the defendant was his boss. Thus, the deceased had told her that he was an employee of the defendant.

24. Madam Lam was cross-examined on her statement made to the Labour Department dated 7 March 2001 where in answer to question 7 she said that she did not know whether the relationship between the defendant and the deceased was one of partnership or employer and employee for the project on the day of the accident. However, in answer to question 8 in the same statement, she did say that about two years before the accident the deceased said that he worked for the defendant. And two weeks before the accident the deceased still said that he worked for the defendant and his wages were $500 per day.

25. In her evidence, Madam Lam was adamant that she knew that the deceased was the employee of the defendant and not his partner. I believe her evidence.

26. As regards the weight of the hearsay evidence of Madam Lam , Section 49 of the Evidence Ordinance, Cap. 8 sets out the considerations that are relevant to the weighing of hearsay evidence. Section 49 provides as follows :

“ Considerations relevant to weighing of hearsay evidence

(1) In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) For the purposes of subsection (1), regard may be had, in particular, to the following-

(a)	whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b)	whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c)	whether the evidence involves multiple hearsay;
(d)	whether any person involved had any motive to conceal or misrepresent matters;
(e)	whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f)	whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;
(g)	whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party."

27. It is impossible to produce the maker of the statement to Madam Lam as he is deceased. It seems to me that the original statements were made contemporaneously or shortly after the existence of the matters stated. It seems to me also that Madam Lam might have reasons to misrepresent matters. However, I have taken these matters into account and am satisfied that sufficient weight can be given to the hearsay evidence of Madam Lam.

28. I have no hesitation in preferring the evidence of Madam Lam to that of the defendant. I find that Madam Lam was a truthful and honest witness who tried her best to recall the events and what the deceased had told her. The defendant was not a truthful witness. He contradicted his previous statements. He was evasive when giving evidence and I find that he was not truthful in his testimony on the issue of whether the deceased was a partner or an employee of his. He was neither an honest nor a credible witness. He was, in my view, discredited in cross-examination and his evidence is unsatisfactory and unreliable. I have no hesitation in accepting the evidence of Madam Lam and in rejecting the evidence of the defendant on the issue of whether the deceased was a partner of the defendant or his employee at the material time.

29. The defendant also gave evidence that the metal cutter belonged to the deceased and that it was placed in his shop at Chai Wan. I do not believe him. Madam Lam said that the deceased did not own a metal cutter and I believe her. In his evidence at the Coroner's Inquest the defendant was asked what tools he had brought for the job and he said a cutter. There was no suggestion there that it was the deceased's cutter. I do not believe that the deceased brought and used his own metal cutter for the job. I find that he used the defendant's tools.

30. It was suggested to the defendant that it was only after the accident that he went around telling people that the deceased was his partner. He denied this. However, Mr. Lam Man Fai of Teemway in his declaration made on 19 February 2001 said that it was the defendant, the proprietor of Wah Fu, who appointed Teemway to do the project. He knew that the defendant was the principal contractor. He also said that after the accident the defendant told him that the deceased was his partner.

31. In the declaration of Ms Chan, the owner of the flat on the 8th floor made on 16 February 2001, she said that she did not know the deceased. She also said that she contracted out the work to the defendant of Wah Fu and that the defendant gave her the formal quotation of Wah Fu, which was the defendant's firm. She also said that the defendant had told her that he himself would be responsible for all matters of safety and insurance. Although there was some mention in Ms Chan's declaration to the Labour Department that the defendant told her that the deceased was his partner, it is not clear whether this was said before or after the accident. I do not believe that the defendant told anyone before the accident that the deceased was his partner.

32. It is important to bear in mind that after Inspector Yue Man-hon, senior inspector of police arrived at the scene of the accident on 12 February 2001 after receiving the report of the accident, the defendant told him that he was the proprietor of Wah Fu and that after he had undertaken the works, he asked the deceased to assist him in the works. This was in evidence at the Coroner's Inquest. The defendant agreed in evidence that he had told the inspector this. He also agreed that he never told the inspector that the deceased was his partner. It seems to me that the suggestion of the deceased being his partner was an afterthought to try and evade his responsibility as an employer. There was no reason not to tell the inspector who arrived at the scene that the deceased was his partner if that were indeed the case. He would not have said that he was the proprietor of Wah Fu and that after he had undertaken the works he asked the deceased to assist him if that were not in fact the true situation. It was only afterwards that he told people that the deceased was his partner so as to try and evade his responsibilities to the deceased.

33. Ms Siao, the tenant, is an elderly lady and although she said in evidence at the Coroner's Inquest that the defendant told her that he and the deceased were partners, this was not what she said in her statement to the police made on 16 February 2001. She said that after the accident the defendant came into her living room and shouted that his co-worker fell to the street. However, in her evidence at the Coroner's Inquest about nine months later she said that she was present when the landlord contacted the defendant who said that the deceased was his "partner" and that the deceased did not speak a word but nodded his head. She did not say this to the police when she made her statement shortly after the accident as it is clear from her said statement that the defendant was saying to her that his worker fell to the street. Ms Siao is an elderly lady and she has not given evidence before me to have the matter tested by cross-examination. I do not find that evidence reliable and I place no weight on the same.

34. I am satisfied that at the material time the deceased was not the defendant's partner but that he was an employee of the defendant. I do not believe the defendant's evidence that the deceased was his partner and I have no hesitation in rejecting his evidence. It is also inconceivable in my view that the deceased would have given him the third party's business card and told him to contact him for the 8th floor job when the deceased was only approached, on the defendant's own evidence, on 10 February 2001 to assist in the project for the job at the premises. I find that the deceased was the defendant's employee and not his partner at the material time and that the deceased met a fatal accident in the course of his employment with the defendant.

Construction works and construction site

35. The plaintiff's case is that the demolition works carried out by the deceased were construction works within the meaning of Section 2 of the Factories And Industrial Undertakings Ordinance, Cap. 159 and that the scaffold where he was working on constituted a construction site within the meaning of the Construction Sites (Safety) Regulations, Cap. 159 ("the CSSR"). This was disputed by the defendant and the third party who contended that as the works were not construction works and the scaffold was not a construction site, the CSSR were inapplicable in imposing statutory duties on the contractor.

36. Section 2 of the Factories and Industrial Undertakings Ordinance, Cap. 59 defines "construction work" as :

“

(a)

the construction, erection, installation, reconstruction, repair, maintenance (including redecoration and external cleaning), renewal, removal, alteration, improvement, dismantling, or demolition of any structure or works specified in the Third Schedule;"

37. The Third Schedule sets out the specified structures and works as follows :

“	1.	Any building, edifice, wall, fence, or chimney, whether constructed wholly or partly above or below ground level.
	2.	................................................................................................ ......................................................."

38. Regulation 38A of the CSSR provides that :

“ (1) Without prejudice to the other provisions of this Part, the contractor responsible for any construction site shall ensure every place of work on the site is, so far as is reasonably practicable, made and kept safe for any person working there."

39. "Construction site" is defined in Reg. 2(1) as "a place where construction work is undertaken and also any area in the immediate vicinity of any such place which is used for the storage of materials or plants used or intended to be used for the purpose of construction work."

40. The question to consider is whether the scaffold where the deceased was working was a construction site.

41. Mr. Chong, for the defendant, submitted that on the authorities of Ma Kam Yeung v. Fu Hay Kin & Others [1998] 2 HKLRD 615 and Leung Lai Yin v. Yeung Kei Chi trading as Shun Hing Furniture Decorating Construction and another (HCPI 317/1999 Deputy Judge To, 7 April 2000 unreported) the scaffold was not a construction site. Both cases involved decoration works undertaken inside a flat and did not involve works on the external wall. They are, in my view, distinguishable on the facts.

42. Mr. Chong also relied on what Deputy Judge To said in Leung Lai Yin at page 6 of his judgment :

“ The part of the definition of "construction work" relied upon by Miss Lee is the "construction or maintenance (including redecoration) of any building". These words have to be interpreted in their proper context and not by merely considering the word "redecoration" in isolation. Hence, decoration or redecoration work as such are not construction work within the meaning of the Ordinance, unless they form part of the maintenance work of the building. Obvious examples would be removing defective plaster, rendering wall surfaces, covering up exposed concrete, and fixing decorative tiles or even marble slabs. They have to be works that have to do with the "well-being" of the building as a whole. Redecoration work in common areas of the building, such as the external walls, the lobbies and corridors are common examples. It may also cover maintenance work of a structural nature inside individual flats which affect the building as a whole. But by no stretch of imagination can it cover internal decoration work inside individual units done for the personal enjoyment of the individual owners, such as making cupboards, wardrobes or beds. I, too, come to the conclusion that the decoration work the plaintiff was engaged in were not construction work within the meaning of the Factories and Industrial Undertakings Ordinance."

43. Mr. Tang, for the plaintiffs, submitted that the above two authorities should not be followed. He submitted that the purpose of the CSSR is to provide for the safety of workmen engaged in construction work. To achieve this objective, a wide definition should be given to "construction work".

44. In Attorney General v. Harbour Engineering Co. Ltd. [1986] HKLR 613 it was held that Section 19 of the Interpretation and General Clauses Ordinance, Cap. 1, requires legislation to be given such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the legislation according to its true intent, meaning and spirit. It was held that the magistrate gave too restricted a meaning to the legislation.

45. As Deputy Judge Ryan (as he then was) said at page 616 :

“ The purpose of regulation 47(1) (Cap. 59) is to provide for the safety of workmen who are liable to come into contact with any electric cable while engaged in construction work. To enable this objective to be achieved "construction work" has been given a very wide definition and includes work which would not in common parlance be regarded as coming within that term. The intention of the legislation is to give to such workmen as wide a protection as possible."

46. In R v. Tsui Wai Ping [1993] 2 HKC 675 the decoration work included dismantling two metal structures at the external wall on the 10th floor of premises. The dismantling work required the erection of a bamboo scaffolding outside the metal structures. Patrick Chan J (as he then was ) said at page 681 :

“ In the present case, it was not disputed that the appellant was to carry out decoration work on the tenth floor of Tak Fung Building. The metal structures which were to be dismantled were also outside the tenth floor. The bamboo scaffolding was to be put up immediately outside the metal structures. These parts were certainly the construction site."

The judge had no difficulty in coming to the view that the bamboo scaffolding was the construction site.

47. In Attorney General v. Chan Ka Kui (t/a 3 Dimensional Interiors) there was an accident when internal decoration works were carried out inside premises. It appears from the judgment that it was admitted that this was a construction site and the judge came to the view that Reg. 2(2) of the CSSR plainly imposed responsibility on the principal contractor.

48. The above cases were not mentioned in the judgments of Deputy Judge Gill in Ma Kam Yeung and of Deputy Judge To in Leung Lai Yin and do not appear to have been cited to them.

49. I accept Mr. Tang's submission that a fair, large and liberal construction should be given to the legislation. The purpose of the CSSR is clearly to provide for the safety of workmen engaged in construction works. The works involved demolition of metal structures and cages installed at the external wall outside the flat on the 8th floor. The metal cage was connected to the rack enclosing the balcony. The scaffold was erected on the external wall and the deceased was required to work there to demolish the metal cage and structures from the external wall. I have no hesitation in coming to the view that the purpose of the CSSR was to protect such a workman. The word "building" and "wall" in the Third Schedule of the Factories and Industrial Undertakings Ordinance must, in my view, include any part of the "building" and "wall". It must have been the intention of the legislature to protect workmen who were working on the external wall of the building or any part thereof.

50. In Leung Lai Yin Deputy Judge To came to the view that for the CSSR to be applicable, the works have to do with the well-being of the building as a whole. In my view this is too narrow a view. It is an unnecessary limitation. Ma Kam Yeung and Leung Lai Yin are, in any event, distinguishable on the facts.

51. Mr. Tang also submitted that the metal structures were attached to the external wall and therefore work was done to the wall. The structures were affixed to the building and therefore formed part of the building. A chattel that is attached to land, however slightly, is prima facie to be deemed a fixture. The balcony can be regarded as a fixture to the building (Cheshire and Burn's Modern Law of Real Property 15th Edn). I accept Mr. Tang's submission.

52. I have no hesitation in coming to the view that the scaffold erected outside the external wall was a construction site within the meaning of the legislation and that the defendant as contractor was responsible to comply with the regulations.

53. In my judgment the defendant was the contractor responsible for the site. He was also the contractor responsible for any scaffold on the site. (Reg. 38C of CSSR and Attorney General v. Liu Ching Sun t/a Sun Lee Aircondition Co. [1986] HKC 302.) The defendant was subject to the statutory duties under the CSSR. All the duties set out in Part VA of the CSSR are imposed on the contractor responsible for the site. This was the defendant.

54. The statutory duties on the defendant as contractor are absolute and non-delegable (Rainfield Design & Associates Ltd v. Siu Chi Moon [2000] 2 HKC 419).

55. Reg. 38C provided as follows :

“ Where work cannot be safely done on or from the ground or from part of a permanent structure, the contractor responsible for the construction site concerned shall provide, and ensure the use of, a scaffold, ladder or other means of support, all of which shall be safe for the purpose, having regard to the work to be done."

56. It is the clear responsibility of the defendant as contractor to ensure that the scaffold shall be safe for the purpose of the demolition works carried out. This the defendant failed to ensure. As admitted by the defendant, he did not have any safety belts or other safety equipment and he did not provide the same to the deceased. The deceased fell from the scaffold and the defendant failed to ensure that the scaffold was safe for the purpose of the demolition works. The contractor's duty was absolute and non-delegable and in my judgment the defendant was in breach of his statutory duty. He failed to provide the deceased with any safety equipment like, for instance, a safety belt. It is likely that he lost his balance and fell because he was not supplied with any safety equipment and I so find. As a result of this the deceased fell to his death. I am satisfied that liability has been established against the defendant.

57. The defendant was also in breach of his duty as employer to provide a safe place of work. This duty is also non-delegable. He failed to provide any safety equipment like, for instance, a safety belt and because of his breach of duty the deceased fell to his death. The defendant is also liable for breach of his duty as employer.

58. The defendant has alleged that the deceased was guilty of contributory negligence. I am unable to accept this. The deceased was the employee of the defendant and he was instructed to carry out the works. There was no safety equipment provided to him by his employer to carry out the works whilst working on the scaffold. As the deceased was simply following his employer's instructions to carry out the works, I am unable to accept that there was any contributory negligence on his part. I find that the defendant was liable for the fatal accident to the deceased and that there was no contributory negligence on his part.

Claim against third party

59. I turn to consider the defendant's claim against the third party.

60. Para. 5 of the amended third party notice relies on an express and/or implied term of the contract between the defendant and the third party that the scaffolds and the working platform constructed by the third party shall be :

(a)	in full compliance of all requirements as prescribed by the CSSR and/or other relevant statutes, regulations and code of practice; and
(b)	in safe working order.

61. Mr. Chong made it plain that the defendant was no longer relying on (a) above but only on (b) as an express and/or implied term of the contract between the defendant and the third party that the scaffolds and the working platform shall be in safe working order. Mr. Wong for the third party accepted that such a term should be implied in the contract. However, he submitted that the third party was not in breach of the implied term.

62. Apart from a breach of contractual duty, Mr. Chong further relied on the third party's failure to comply with the Code of Practice for Scaffolding Safety 1995 ("the Code of Practice") as evidence of negligence.

63. It is important in my view to bear in mind that the statutory duty under section 38C of the CSSR is a duty imposed on the defendant as contractor to ensure that the use of a scaffold shall be safe having regard to the work to be done. As I have said, this duty was an absolute one and non-delegable.

64. It is not in dispute that the working platform did not have toe-boards erected at the edges of the working platform. Mr. Chong submitted that the working platform erected by the third party was not in safe working order because of the absence of toe-boards at the edges of the working platform. He made it plain in his closing submissions that this was the only thing that he relied on to show that the working platform was not safe and that this was what caused the deceased to fall.

65. I accept that there was a void space of 75 cm X 95 cm on the scaffold on the day of the accident as shown in the report of Mr. Cheng Poon, the Divisional Safety Officer Occupation and that a worker could fall through the void space. This, however, does not show that the deceased fell because of the absence of toe-boards. It is for the defendant to establish that the absence of the toe-boards caused the defendant to fall. There was, however, no evidence that this was the case. I have said that it is likely, in my view, that the deceased lost his balance and fell because he was not supplied with any safety equipment.

66. Section 4.3.1 (i) of the Code of Practice 1995 provided that toe-boards and end toe-boards should be suitably fixed to all working platforms where a person may fall more than 2 m. They should have a minimum height of 200 mm.

67. The defendant gave evidence that he was inexperienced in working at heights and that he was not familiar with working on scaffolds. For that reason he relied on the deceased. I do not believe him. On his own evidence he only asked the deceased to assist in the works on the premises on 10th February 2001. This was two days before the accident. It is clear that the defendant was the one who contacted the third party to erect the scaffold. He gave him the measurements for the scaffolds to be erected and was able to negotiate the price with the third party. The third party gave evidence that he enclosed the working platform with blue and white canvas. This was to prevent the fall of equipment and debris whilst workers were working on the scaffold. He said that he covered the platform with canvas in accordance with the defendant's instructions. I believe him. The defendant denied this but I do not believe the defendant. He was evasive in his evidence. Where his evidence is at variance with the third party's evidence, I prefer the evidence of the third party.

68. In his statement to the Labour Department on 13 February 2001, the defendant said that the base of the scaffold was covered with canvas and that the toe-boards were replaced by canvas. I find that the defendant was the one who instructed the third party to install the canvas covering instead of toe-boards. In evidence the defendant said that he did not know what toe-boards were but I do not believe him. He was able to mention in his said statement to the Labour Department that toe-boards were replaced by canvas. The third party did install the canvas covering but not toe-boards as he was not instructed to do so.

69. Mr. Wong submitted that the deceased was a strongly built man who was 1.78 metres tall and a toe-board with minimum height of 200 mm would have been ineffective to prevent his fall. What would have been an effective safety measures to prevent his fall would have been the provision of a safety belt or other safety equipment by the defendant. There is considerable force in this submission. I accept Mr. Wong's submission. The defendant failed to provide any safety equipment to the deceased and in my judgment it was because of this that the deceased fell from the scaffold. The defendant has failed to establish that the deceased fell because of the absence of toe-boards. The defendant has failed to establish that the third party caused or contributed to the deceased's fall. The defendant's claim against the third party is dismissed.

Damages

70. I turn to the quantum of damages. The dependants of the deceased are his widow, Madam Lam, his daughter Poon Sau Kuen born on 13 May 1992 and his son Poon Kin Shing born on 26 February 1998.

71. The plaintiffs and the defendant have agreed a number of matters on quantum. It is agreed that at the time of the accident the deceased's income was $3,500 per month. It is also agreed that he used to give $2,000 per month to his wife to help pay for household expenses and that he kept $1,500 for his own use. It is also agreed that the pre-trial period is 34 months. The pre-trial loss of dependency is agreed at $68,000 ($2,000 X 34 months).

72. The deceased was 35 years old at the time of death. The agreed multiplier is 15. As the pre-trial period has been agreed at 34 months, the post-trial period for loss of dependency is agreed at 146 months. However, the multiplicand for the post-trial dependency in the sum of $9,000 claimed is not agreed.

73. Damages for bereavement in the sum of $150,000 is also agreed. Funeral expenses in the sum of $55,000 is also agreed.

74. Loss of accumulation of wealth is not agreed. There is no claim for pre-trial loss of accumulation of wealth. There is a claim for post-trial loss of accumulation of wealth as follows :

$12,000 X 10% X 146.

The multiplicand of $12,000 is disputed but 10% of the proper multiplicand and the 146 months' period is agreed for post-trial loss of accumulation of wealth.

75. Interest is also agreed.

76. The only dispute between the parties on the quantum of damages is the anticipated earnings of the deceased post-trial and the amount of anticipated dependency post-trial.

77. The plaintiffs' case is that the deceased had been working as a painter for 16 years from 1982 to 1998 earning about $12,000 per month out of which he gave $9,000 to Madam Lam for household expenses. That evidence was not challenged.

78. Mr. Tang submitted that even in 1998 the deceased was earning less than the average painter. This is borne out by the statistics of average daily wage of workers engaged in government building and construction projects which show that in about April 1998 a painter earned on average the daily wage of $738.90 or $19,188 for a month consisting of 26 working days.

79. Mr. Tang further submitted that it would not be unreasonable to take $12,000 as the deceased's earnings for post-trial loss and to arrive at a loss of dependency of $9,000 per month for the agreed post-trial period of 146 months. Mr. Chong submitted that the plaintiffs are unable to show that the deceased would be earning $12,000 per month but for the accident and that the earnings and dependency at trial should be adopted for future loss of dependency. Thus, the multiplicand for post-trial dependency should be $2,000.

80. Mr. Chong made the valid point that the outlook for the construction industry is still gloomy. He relied on the Report On Quarterly Business Tendency Survey, October 2003 to show that the survey, which was conducted from September to October 2003, disclosed that more people expected a decrease in volume of construction output, employment and tender prices as compared to those expecting an increase in the fourth quarter of 2003.

81. I accept that the outlook for the construction industry is still gloomy. However, I have no doubt that the economy as a whole is improving and that in time the construction industry will also improve. The agreed multiplier for loss of dependency is 146 months. That is a long multiplier. In my view it would be a grave injustice to the plaintiffs if the loss of dependency were assessed on the basis that the deceased would not have received any increased earnings for the whole of the period of the multiplier. That is, in my view, not only unjust but unrealistic as well. I am satisfied that but for the accident the deceased's earnings would have increased in time.

82. I am unable to accept Mr. Tang's submission that $12,000 should be taken as the deceased's earnings for the whole of the post-trial loss to arrive at a post-trial loss of dependency of $9,000. By para. 7 of the Revised Statement of Damages it is pleaded that but for the accident the deceased's income would have returned to a level comparable to that of his previous employment as a painter, in about three years time i.e. three years from the date of the document, 26 February 2003 namely, by February 2006. The plaintiffs are bound by their pleading. The plaintiffs' pleaded case is that by February 2006 the deceased would have earned $12,000 per month and that the loss of dependency would be $9,000 per month.

83. I am unable to accept that the deceased would have reached his previous level of earnings of $12,000 by February 2006 as pleaded. However, doing the best I can, it seems to me to be reasonable to assess future loss of dependency on the basis that the deceased would have had his earnings increased to about $9,000 in about two years from trial and that he would by then have given his wife about $6,500 for household expenses and would have kept $2,500 for himself. Therefore, the post-trial loss of dependency would in my judgment be $2,000 per month for two years i.e. 24 months from trial and thereafter for the remaining 122 months (146 months - 24 months) be $6,500 per month.

84. I award post-trial loss of dependency as follows :

(a)	$2,000 X 24 months	=	$48,000
(b)	$6,500 X 122 months	=	$793,000
			$841,000

85. As for post-trial loss of accumulation of wealth, I am unable to accept the submission that there was no evidence of any savings pattern by the deceased. The deceased had purchased a flat and mortgage monies were paid by him. There is clear evidence of accumulation of wealth. I award post-trial loss of accumulation of wealth as follows :

(a)	$3,500 X 10% X 24 months	=	$8,400
(b)	$9,000 X 10% X 122 months	=	$109,800
			$118,200

Conclusion

86. To conclude, I award the plaintiffs damages as follows :

(a)	pre-trial loss of dependency		$68,000
(b)	Interest thereon at 1/2 judgment rate for date of death to judgment ($68,000 X 4% X 36 months)		$8,160
(c)	damages for bereavement		$150,000
(d)	Interest thereon at rate payable on suitor's funds from date of death to judgment ($150,000 X 8% X 36 months)		$36,000
(e)	Funeral expenses		$55,000
(f)	Interest thereon at 1/2 judgment rate from date of death to judgment ($55,000 X 4% X 36 months)		$6,600
(g)	Post-trial loss of dependency		$841,000
(h)	Post-trial loss of accumulation of wealth		$118,200
		Total	$1,282,960

87. I give judgment to the plaintiffs against the defendant for damages in the said sum of $1,282,960. I also make an order nisi for costs of the action to the plaintiffs to be paid by the defendant, such costs to be taxed if not agreed. The plaintiffs' own costs are to be taxed in accordance with Legal Aid Regulations. The third party claim is dismissed. I also make an order nisi for costs of the third party claim to be paid to the third party by the defendant, such costs to be taxed if not agreed.