HSU LI YUN v. THE INCORPORATED OWNERS OF YUEN FAT BUILDING

P.I. No. 786 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 786 OF 1998

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J U D G M E N T

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THE FACTS:

1. The plaintiff is the administratrix of the estate of her deceased husband who was the sole proprietor of Mansion Design Decoration & Engineering Company. The deceased had contracted to maintain the salt water plumbing system in Yuen Fat Building. On 5 August 1995, he was summonsed by the management of the building to attend to certain repairs. He arrived at the management office at about 10:30 p.m. and collected the key to the pump room. At about noon on the following day, he was found lying dead in the pump room.

2. The pump room was a small structure of 11.5 feet by 8.5 feet. Against the wall by the entrance was installed a fibre glass salt water tank which measured 3 feet by 8 feet. Mounted on the wall above the tank were the switch box and control panels. The tank had a fibre glass cover on the top of which was installed a water level control switch which operated the water pumps. The fibre glass cover was found to have collapsed and submerged in the water tank with the water level control switch and its connecting wires. The deceased had no significant superficial injuries and was found to have died of electrocution. The irresistible inference was that while the deceased stood on top of the fibre glass cover to access the switch box or control panels mounted on the wall, the fibre glass cover collapsed. As a result, the deceased came into contact with the water which became charged to 220 volt by the wires connecting the water level control switch which fell into the water with the broken cover and the deceased.

3. The uncontroverted evidence shows that prior to starting his own business, the deceased had worked as a maintenance worker in Kowloon Water Pump Engineering Company which was either a subsidiary or a department of Kowloon Property & Agency Company. For the purpose of the present proceedings, I shall treat the two as one entity and call it "Kowloon Company". The plaintiff had a very close and good relation with the deceased and had visited his work place. The proprietors of the company were also known to the plaintiff. According to the plaintiff, there were only two workers in the department where the deceased worked and since the deceased left the employment of Kowloon Company, the maintenance department closed down as there was no skilled worker left.

4. The plaintiff has no knowledge whether the plumbing system was designed and installed by the deceased. However, according to Mr. Sung, the caretaker supervisor of Yuen Fat Building, the deceased while working for Kowloon Company had been responsible for maintaining the plumbing and electrical installations of the building and had negotiated for the improvement of the salt water plumbing system with the defendant in January 1990. The works included the installation of an additional salt water tank and three water pumps to increase the capacity of the flushing system so as to allow for the flush water to be siphoned off to the seafood stalls nearby. He produced the contract for the improvement works, which was printed on the invoice of Kowloon Water Pump Engineering Company and signed by the deceased. As the deceased was the only skilled worker in the maintenance department and the other one or two workers there were casual labourers, the irresistible inference is that the deceased was the one who designed the system and was responsible for its installation.

5. There was also uncontroverted evidence that after the one year guaranteed period expired, the deceased negotiated a maintenance contract with the defendant for the maintenance of the system by his own company. According to Mr. Sung, the pump room was always locked with the key kept by the management office and that other than the deceased and his employee, few people ever had access to the pump room.

6. It is obvious as the photographs of the pump room show that in order to access the control panels or switch box for service, one has to stand on top of the cover of the fibre glass tank. As the accident shows, it was unsafe to do so and that the fibre glass cover was not suitable to stand on. In the absence of expert evidence, I do not intend to propose how the access to the control panels and switch box could be rendered safe by relocating them or the water tank or the pumps. Suffice it to say, I have no difficulties to conclude that the design of the plumbing system was negligent and that rendered the pump room a potential danger. Unfortunately for the plaintiff, the deceased was actually the person responsible for that state of affairs by designing and installing that system.

LIABILITY:

7. The plaintiff based her claim on negligence and on occupier's liability. The defence was that the defendant had engaged a competent contractor for the work, who was the deceased himself, that the maintenance work involved special risks and that the deceased was contributory negligent.

8. The elements to be considered under the two heads are co-terminous, i.e. whether there was breach of the common duty of care. Section 3(2) of the Occupiers Liability Ordinance defines the common duty of care as:

"........ a duty to take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

9. I shall first deal with the issue of special risks. Section 3(3)(b) of the Occupiers Liability Ordinance provides:

"The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases -

(a)

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so."

10. In Yeung Kam Fuk v. Len Shing Construction Co. Ltd. & Ors., [1986] HKC 160, the plaintiff was engaged to dismantle formwork on a platform on the 14th floor of a building under construction. He was injured when the platform on which he stood collapsed. Hunter J found that was not a special risks case as set out in section 3(3)(b). The deceased was a plumber and electrician. He certainly exposed himself to risks of injury working with electricity, switches and wires, etc., but not to other risks, such as working at height, or as in the present case, working over a water tank with inadequate support. As in the case of Yeung Kam Fuk, he fell into the water tank because of failure of support. I find that the risk which resulted in his death was not a risk "ordinarily incident" to his calling as an electrician and plumber.

11. The most important issue in the present dispute is whether the defendant has discharged the common duty of care to the deceased. The danger was the negligent design and installation of the electrical and plumbing system inside the pump room. This was a task which the defendant could not have performed itself. The defendant pleads that in the circumstances it has discharged the duty by engaging the deceased, a competent independent contractor.

12. Section 3(4) provides:

"In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) -

(a)

(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done."

In my view, the words "without more" connotes the meaning that the occupier had to act reasonably in entrusting the work to an independent contractor and had taken such steps as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done. It is of no avail to the occupier to establish that he had employed a qualified independent contractor and that the latter had been negligent.

13. In construing this subsection, Hunter J held in Yeung Kam Fuk v. Len Shing Construction Co. Ltd. & Ors., at p. 167:

"This subsection shows that neither extreme is true. By employing an independent contractor, the occupier does not avoid all liability. He cannot turn round and say this is not my responsibility at all; it is the independent contractor's alone. Equally, he is not directly responsible for an independent contractor as though that man were his servant......... It shows that the test is whether the contractor himself took reasonable care in the respects identified."

14. Hunter J then adopted the four point test of reasonable care as suggested by Clerk and Lindsell (15th Ed), para. 1233 on p 623, which is as follow:

(1) Has the occupier acted reasonably in entrusting work to an independent contractor?

(2) Used reasonable care in selecting the contractor?

(3) Taken reasonable steps (if any are possible) to supervise the carrying out of the work?

(4) Used reasonable care to check (if possible) that the work has been properly done?

If the answer to these questions is 'yes', then the occupier will be held to have discharged his common duty of care. This must be the correct test.

15. The installation in the pump room was not the kind of work which the defendant could perform by itself. It required the combined skill and care of an electrician and a plumber. The defendant did not have such expertise. It was therefore reasonable to entrust the work to an independent contractor.

16. In relation to the second question, the defendant says it has exercised reasonable care in selecting the contractor and has so employed the deceased or Kowloon Company in which the deceased worked. Miss Yip, on behalf of the plaintiff, sought to distinguish the deceased from his employer, even though the deceased was the natural person who physically performed the work.

17. The contract for installing the system was dated 8 January 1990. The contracting parties were the defendant and Kowloon Company. At that time, the deceased was an employee of the company and signed on behalf of the company. The deceased was the only skilled worker in the maintenance department or water pump department. In addition to the deceased, Kowloon Company employed one to two casual labourers. The other business of Kowloon Company was general building management and collecting management fees. Miss Yip submitted that this was the independent contractor with whom the defendant contracted and not the deceased. This must be correct.

18. Mr. Pedruco, on behalf of the defendant, sought to identify the deceased as Kowloon Company and his competence as that of Kowloon Company. The deceased had already been responsible for the maintenance of the plumbing system since 1987 and had shown the defendant his certificates. Miss Yip submitted that the deceased was not a competent electrician and had not even been registered as a Grade A electrician in 1990. However, Mr. Pedruco pointed out rightly that the system of registration and classification of electricians has not come into effect in 1990. He therefore submitted that in view of the experience and qualification of the deceased and his employment with Kowloon Company, the deceased was a competent electrician. He further submitted that Kowloon Water Pump & Engineering Company represented itself on the invoice as a specialist in plumbing and electrical work and hence the defendant had used reasonable care in selecting the contractor, whether it was the deceased or Kowloon Company.

19. The deceased was an industrious person. He had many years' experience working in ships and later as an electrician and plumber. He had obtained a number of certificates of attendance of various short courses for electricians and plumbers. He also had an electrician certificate from Panama. When the system of registration of electricians came into effect in June 1992, he was immediately registered under Grade A, which is the minimum qualification for registration and was therefore competent to deal with electrical installation of under 400 ampere. Had the system of registration come into effect in 1990, I would have considered him a qualified Grade A electrician. Does that mean the defendant had used reasonable care in selecting the deceased or Kowloon Company as the contractor?

20. I think this has to be considered in the light of the prevailing circumstances then in January 1990. At the time, there was no system of registration of electricians or electrical contractors. It appeared anyone, if he had the nerves, might carry on business as an electrician. Kowloon Company was apparently a reasonably presentable company in a commercial building and not a small street stall. Its business was building management and it claimed to have expertise in plumbing and electrical engineering work. Its invoices were printed by computer. On the other hand, the defendant was a consumer with no knowledge in engineering. The work that was involved was not a major installation. The deceased on behalf of Kowloon Company had maintained the electrical and plumbing installations for the defendant for a number of years, and presumably satisfactorily. There is little that the defendant could have done to verify the competence of the deceased or Kowloon Company or doubted their competence. In the light of these and the prevailing circumstances then in 1990, I find that the defendant had used reasonable care in selecting the contractor.

21. The work was of a technical nature and the defendant was a mere consumer relying on the expertise of the contractor. I do not think it appropriate for the defendant to supervise the carrying out of the installation by the deceased or Kowloon Company.

22. By the same token, one may argue that it was not possible for the defendant to check if the work had been properly done. Indeed, Mr. Pedruco relied on Green v. Fibreglass Ltd., [1958] 2 All E.R. 521, as authority for the proposition that the occupier has fulfilled his duty of care as a prudent man by employing a qualified and reputable expert to do the work. In that case, when the occupier became tenants of certain offices, they had the offices re-wired by an established electrical contractor of good repute. However, owing to faulty wiring, the plaintiff was injured. The plaintiff's action was dismissed. However, it is important to note the reason of the decision. Salmon J held at 524:

"In my view, they would discharge their duty of care by employing reputable and competent experts; and this they did. Nor had the defendants at any time thereafter any reason to suppose that the experts had been negligent, or that the electrical installation was unsafe."

Thus, that decision was based on the premises that the defect was a latent one and the occupier had no reason to suppose that the experts had been negligent or that the electrical installation was unsafe.

23. In the present case, the work resulted in the switch box and control panels being installed directly above the water tank. That design was obviously dangerous. The switch box and control panels would need servicing from time to time. In order to access the switch box and control panels, one would have to stand on the fibre glass cover. It does not need an expert to foresee that such a cover was not suitable to stand on and should it collapse with someone standing on it, that person would risk electrocution. That danger is obvious, even to the untrained eye. If the defendant had given any thought to the installation when it was completed, it would have readily concluded that it was dangerous. This feature distinguishes the present case from Green v. Fibreglass Ltd., where the danger was a latent one. In my judgment, the defendant has failed to use reasonable care to check that the work has been properly done.

24. Further, it was unreasonable that the defendant should do nothing about the dangerous state in the pump room and allow it to exist for five years. It was reasonably foreseeable that an unwary visitor requiring access to the control panels and switch box would stand on the fibre cover, which was obviously not suitable for that purpose. The common duty of care would require the defendant as occupier to provide other forms of support or otherwise to reinforce the cover to make sure that his visitors would be reasonably safe in accessing the control panels and switch box. The accident showed that the defendant was in breach of this common duty of care.

25. A peculiar feature in this case is that, in effect, the plaintiff, in the shoes of the deceased, is seeking damages against the defendant in respect of the dangerous state in the pump room created by the deceased's own negligent design. That is why Mr. Pedruco sought to identify the deceased as Kowloon Company. In my judgment, the fact that the deceased was the creator of the dangerous state is of relevance in considering contributory negligence but does not relieve the occupier of its common duty of care in seeing that the premises were reasonably safe to its visitors, including the deceased himself. Once the dangerous state is created, the law imposes on the defendant as occupier of the dangerous premises the common duty of care. That duty is owed to any visitor as it was to the deceased who created the danger.

26. In Siu Chi Moon v. Rainfield Design and Associates Limited, Civil Appeal No. 234 of 1998, the plaintiff subcontractor was injured when climbing down a scaffold. He was in breach of his own contractual duty to his principal contractor for failing to comply with safety regulations. He succeeded on his claim against his principal contractor for the principal contractor's breach of statutory duty to provide safe means of access to the scaffold, which he was duty bound to provide under the terms of his subcontract with the principal contractor. The analogy to be drawn from Siu Chi Moon supports my finding above on the issue of liability.

Contributory negligence:

27. Miss Yip submitted that the deceased had little choice but to take the risk as he was asked to attend to an emergency. She submitted that the degree of negligence, if any, is minimal and should be no more than 10%. I cannot agree. In Davies v. Swan Motor Co (Swansea) Ltd., [1949] 2 KB 291, Lord Denning had this to say at p.326:

"While causation is the decisive factor in determining whether there should be a reduced amount payable to the plaintiff, nevertheless the amount of the reduction does not depend solely on the degree of causation. The amount of reduction is such an amount as may be found by the court to be 'just and equitable', having regard to the claimant's share in the responsibility for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness."

28. In Siu Chi Moon v. Rainfield Design and Associates Limited, the Court of Appeal held that the plaintiff was 50% to blame for his own breach in failing to take care for his own safety. In the present case, the deceased was not a stranger to the pump room. He was the person who designed and installed the system and was responsible for its negligent design. He had maintained the system for five years before the unfortunate accident. He must have known it was unsafe as he had in the past placed a wooden plank on the cover as a support. Someone might have removed the wooden plank before the accident. There is no evidence to suggest that the emergency, which he was called to attend to, was such as to justify the deceased taking that risk. Having regard to the above, I form the impression that he was much more to blame than the plaintiff in Siu Chi Moon. I would hold him guilty of 75% contributory negligence for his negligent design and for his knowingly failing to take reasonable care for his own safety.

QUANTUM:

29. The plaintiff was born on 31 December 1951 and is almost 48. She is the wife of the deceased and she brought this action for herself, her daughter now aged 25 and the father of the deceased who died eleven months after the deceased's death. The deceased was born on 8 January 1944 and was 51 at the time of the accident. He was a very diligent person, responsible father and husband and a filial son.

30. According to the tax computation assessed by the Inland Revenue Department, the deceased earned $130,000.00 by way of salary he drew from the business and $100,025.00 as business profit for 1994/95. He paid $2,472.00 tax. His average monthly income at the time of his death was therefore $18,962.75 net of tax. The deceased's tax computation for 1994/95 showed an increase in the sum total of his salary and profit of 7.78% over that of 1993/4. At that rate of increase, his income at the various dates set out below are:

Date	Amount	Event
1.4.1995	$18,962.75	1994/95 tax return
1.8.1995	$19,454.52	Date of death
1.10.1995	$19,700.40	Daughter to study in UK
1.7.1997	$22,282.18	Daughter finished education
1.11.1999	$25,724.55	Date of trial

31. The family expenses for the family of four was $9,568.50, which included a mortgage payment of $3,339.00. Mr. Pedruco submitted that this amount contains a capital element and an interest element and that only the latter should be treated as expense. Miss Yip, on the other hand, submitted that the amount was too difficult to assess and suggested that the entire amount should be treated as rental. It is true that the interest element reduces with time. It is not impossible to calculate. However, I think it is convenient to treat 50% of the instalment as capital contribution and 50% as expenditure by way of interest in the medium to long term. Accordingly, I reduce the family expense to $7,899.00. The share of each dependent is therefore $1,974.75 or 10.15% of the deceased's income.

Plaintiff widow:

32. The widow was 44 years old at the time of the accident. Miss Yip submitted that with a life expectancy of up to 80 years old, she had lost 36 years of dependency and that a multiplier of 12 appropriate. Where the deceased was older than the dependent, I do not consider the age of the dependent relevant for deciding the multiplier. The deceased husband was 51 at the time of the accident. The widow is only entitled to have a dependency up to the working life of the deceased, beyond which she would have to turn to other means of support. That would have been the position had the deceased not met with the accident. The deceased was a manual worker. Assuming that he had a working life of up to 60 to support the widow, a multiplier of eight is appropriate. The pre-trial period is 51 months. The plaintiff widow's loss of dependency is assessed as follow:

Pre-trial loss of dependency:

($19,454.52 + $25,724.55)/2 X 10.15% X 51 =

$116,934.72

Post-trial loss of dependency:

$25,724.55 X 10.15% X (8 X 12 -51) =

$117,496.88

Daughter:

33. Though the deceased paid for the daughter's schooling, at the time of his death, the daughter had actually finished the term and was waiting to continue her study abroad. Her loss of dependency before studying in the United Kingdom would then be her pocket money and share of family expenses for the two months. When the daughter studied in the U.K., she required $11,500.00 per month which would have been 58.37% of his would be income in October 1995. She was self supporting upon her return from her study and suffered no post-trial loss of dependency. Hence her loss of dependency is assessed as follow:

From August to September 1995:

($2,000.00 + $1974.75) X 2 =

$7,949.50

From October 1995 to July 1997:

($19,700.40 + $22,282.18)/2 X 58.37% X 21 =	$257,304.91
Total:	$265,254.41

The father:

34. The deceased used to contribute $1,500.00 to his father who died 11 months after the deceased. The father's loss was therefore $16,500.00 (i.e. $1,500 X 11).

Loss of accumulation of wealth:

35. The deceased had purchased a flat and kept a small saving. He was a responsible and frugal person. Assuming that he spent 10% of his income on himself, I am satisfied he could save at least 20% of his income after netting all expenses for the two months prior to his daughter studying in the United Kingdom. He could not have saved anything while the daughter studied abroad, but he could have saved his contribution to his father after the father died. After the daughter finished her studies, he could have saved at least 50% of his income, even assuming he would have spent more by being more affluent. I would adopt a multiplier of eight, but two of that would have gone by the time the daughter finished her education. His loss of accumulation of wealth is therefore assessed as follow:

Pre-trial loss of accumulation of wealth:

Post-trial loss of accumulation of wealth:

36. The damages on the basis of 100% liability and 25% liability as discounted for contributory negligence are as follow:

37. Accordingly, I enter judgment for the plaintiff in the sum of $389,751 plus interest. The interest on the bereavement award shall be at suitor funds rate. The pre-trial loss of dependency and of accumulation of wealth will bear interest at half judgment rate until trial and thereafter at judgment rate until payment. The funeral expenses, post-trial loss of dependency and of accumulation of wealth will bear interest at judgment rate. I also make an order nisi that the defendant shall pay the plaintiff's costs, to be taxed if not agreed; and the plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

38. The father of the deceased had died before the trial and the daughter had received her education in the United Kingdom while supported by the plaintiff or the estate of the deceased and is now self supporting. The plaintiff impressed me as a person of good sense and competence. I am therefore satisfied that this is not a case in which I should make any apportionment amongst the dependants.