TO WEI KEI v. VICKCORE ENGINEERING LTD. AND ANOTHER

HCPI 290/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.290 OF 2000

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By original Writ and by Order to carry on proceedings, dated 3rd April 2002

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J U D G M E N T

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1) The deceased commenced action against the 1st and 2nd defendants for damages for personal injuries at work on 25 March 1997. The 2nd defendant was the principal contractor of the construction site at Wing Hing Street, Causeway Bay and the 1st defendant was a sub-contractor responsible for the steel reinforcement fixing of the foundation. The deceased was a welder engaged by the 1st defendant. The deceased died of cancer on 23 August 2000 and the action was continued by his administrators. The trial is both on liability and quantum.

LIABILITY

The accident

2) The deceased commenced working on the construction site on 17 March 1997. His duties included welding and also removing debris. On 25 March 1997, the oxy-acetylene cylinder exploded when the deceased was welding. He was thrown off by the force of the explosion and his head and neck hit some steel bars in the vicinity.

The issues

3) The issues relating to liability are :

(1) Whether the deceased was an employee or an independent contractor of the 1st defendant;

(2) Whether the welding equipment was provided by the plaintiff or the 1st defendant; and

(3) Whether the welding equipment had been used by others before the accident on 25 March 1997.

Whether employment

4) The deceased stated in his statements that he was an employee. He used to be a licensed dealer in old metal under the name of Wai Hing Metal, but had ceased business in 1987.

5) Between 17 and 25 March 1997, the deceased worked on the site as a welder for nine days. He rendered invoices of Wai Hing Metal for $1,800 per day for the welding work including the oxy-acetylene fuel. On three days during that period, he also removed debris and rendered invoices of Wai Hing Metal for $800 per day. He explained that he was not conducting a business, but had used the invoices of Wai Hing Metal solely for convenience to record the work done.

6) After the accident, the 2nd defendant filed two Notices by Employer of the Death of an Employee or of an Accident to an Employee Resulting in Death or Incapacity (Form 2) under the Employees' Compensation Ordinance (Cap.282). The first Form 2 was dated 8 April 1997, stating the deceased to be an employee of Wai Hing Metal, and Winfast Engineering Limited to be the principal contractor. The second Form 2 was dated 30 July 1997, stating the deceased to be an employee of the 1st defendant, and the 2nd defendant to be the principal contractor.

7) On or about 26 July 1997, the deceased and Lam Sun Tak ("Lam") of the 1st defendant had a meeting at the Labour Department. The deceased signed an Employment Application Form (Site Use Only) as a welding worker of the 1st defendant. The form was backdated to 23 March 1997. The salary expected was stated to be $950 per day, with endorsement "not including allowances and overtime". The form was also signed by Lam as a director of the 1st defendant. The deceased explained that $950 was used because his actual wage was thought to be too high.

8) The 1st defendant also signed a form Notification of Accident to an Employee Resulting in Injury dated 26 July 1997. The 1st defendant stated itself as the employee of the deceased. Thereafter, the deceased was in receipt of periodical payments under the Employees' Compensation Ordinance.

9) Counsel for the defendants Mr Chau could not offer any explanation as to the employment documents. He simply submitted that the invoices of Wai Hing Metal suggested that the deceased was not an employee but an independent contractor.

10) I accept the evidence of the deceased notwithstanding that there was no crossIt -examination. is supported by the employment documents signed by the find 1st defendant retrospectively. I that the deceased was an employee of the 1st defendant.

Who provided the equipment

11) The deceased stated that the welding equipment was provided by the 1st defendant. He went to the 1st defendant's workshop to collect the equipment before working on the site.

12) Neither the 1st nor the 2nd defendant produced any evidence from any witnesses to contradict the deceased on this point. However, at the bottom of the invoices of Wai Hing Metal relating to welding, it was stated that the wage included the supply of oxy-acetylene and welding equipment. The deceased stated that those remarks at the bottom were written by Lam. He only wrote out he body of the invoices which stated $1,800 included the wage and oxy-acetylene.

13) I accept the evidence of the deceased. It is obvious that the handwriting of the remarks and that of the invoices are different. I find that the welding equipment was provided by the 1st defendant.

Use of the equipment

14) There is no forensic evidence as to why the welding equipment exploded.

15) The deceased stated that neither the 1st nor the 2nd defendant provided any place for the storage of the welding equipment overnight. He would examine the equipment each night before storing them underneath some steel bars beside the crane. However, that place was assessable by others.

16) On the day in question, the deceased received instructions to work in a hurry and did not examine the welding equipment before use.

17) The deceased stated that he had examined the photographs of the steel bars at the scene taken by the Labour Department. They showed there was at least one steel bar cut by welding equipment. He believed that the welding equipment had been used or tampered with by someone the night before without his knowledge. He stated that steel bar should be cut by special equipment instead of by welding equipment.

18) I accept the evidence of the deceased and I infer that the welding equipment was improperly used by someone during the night.

Liability of the 1st defendant

19) An employer is under an implied duty to provide and maintain safe equipment for use by the employee. There is no dispute as to that duty. The welding equipment belonged to the 1st defendant. There is no evidence of any improper use of the equipment by the deceased. On the other hand, the 1st defendant failed to provide proper storage of the equipment free from any improper use by others. Hence, the 1st defendant is liable for the explosion of the equipment.

Liability of the 2nd defendant

20) Counsel for the deceased Mr Chan submitted that a principal contractor of the site is under high duty in respect of activities likely to cause an explosion and must ensure that care is taken. In the absence of any evidence of any precautionary measures taken, the 2nd defendant is also liable for the explosion.

21) Mr Chan referred to the Charles and Percy on Negligence (10th edition, 2001) :

"12-170 Doing Acts likely to cause an explosion

When an act is done, which is likely to cause an explosion, there is a duty to take care to avoid causing one. The degree of care that is required is a high one and liability cannot be avoided by employing an independent contractor to do the act.

12-172 ... Again, where a firm of ship-repairers, before using an oxyacetylene burner, had employed a consulting engineer to make a report and, on his reporting 'gas free', had used the burner, when an explosion occurred, the ship-repairers were held liable for the negligence of the engineer in not making a proper inspection before giving his certificate. Their duty, when dangerous things were to be used, was not merely to take care but to ensure that care was taken.

12-175 Prima facie evidence of negligence

The fact that either something belonging to the defendant explodes or an explosion occurs out of and in the course of some operation carried out by or under the control of the defendant, is prima facie evidence of negligence on his part. Where an explosion occurred, the cause of which was unknown, at a cartridge factory, the owners were nevertheless found negligent in not supplying suitable machinery and in not taking sufficient precautions to prevent an explosion. It was also held that exact proof of negligence was not necessary where the accident was the work of a moment, and its origin and cause were incapable of being detected..."

22) Mr Chan also referred to The Pass of Ballaster [1942] P 112, per Langton J where it was held :

"...that while in general a person who employs a contractor is not liable for the acts of the contractor, yet where instruments or materials which are in themselves dangerous are being used, the principal has not merely a duty to take care but also a duty to provide that care is taken; that in failing to test the after cofferdam to ensure that it was gas free, even if this failure was due to the negligence of the consulting engineer and not to the personal negligence of the defendants or their servants, the defendants were failing in a duty the responsibility for which they could not delegate to a contractor, and that they were liable to the plaintiffs for the damage."

23) On the other hand, Mr Chau referred to Lam Yuet Kam v. Tsui Fong Fun t/a Kin Wang Cleaning Services Company HCPI 235/2001, per Suffiad J which held that a principal contractor was not liable for a defective ladder supplied by the sub-contractor.

24) I find that the act of welding which involves the use of oxy-acetylene is a dangerous process which is like to cause an explosion. The 2nd defendant as the principal contractor of the site on which such process is carried out is under a high duty to ensure the safety of the equipment. It has failed in its duty towards the deceased in ensuring that care is taken as to the safe storage and proper maintenance of the welding equipment before it was used by the deceased. Hence, the 2nd defendant is liable.

Contributory negligence

25) Counsel for the defence submitted that the deceased is liable for contributory negligence in :

(1) failing to check the welding equipment before use;

(2) failing to notice the improper cut of the steel bar such as to alert him to check the welding equipment before use.

26) There were a large number of steel bars in the locus in quo. The fact that the deceased noticed the steel bar was improperly cut when examining the photographs after the accident does not mean that he was negligent in not so noticing before staring work. The deceased was under pressure to complete the work soon. There is no evidence that the defect of the welding equipment resulting from previous improper use would be visible upon physical examination. Hence, I find that the deceased has not been guilty of any contributory negligence.

Conclusion on liability

27) I find that both the 1st and 2nd defendants are liable for negligence towards the deceased.

QUANTUM

The injuries

28) The deceased was born on 13 June 1950. He suffered from prolapsed C3/C4 disc with residual spinal cord compression. Initially, he suffered from paralysis of the four limbs. Decompression and anterior spinal fusion was done on 5 April 1997. He was hospitalised from 25 March to 25 June 1997 and was granted sick leave for two years. Weakness of the limbs improved gradually with residual spasticity. He was able to walk without support.

Pain, suffering and loss of amenities

29) The award is agreed at $220,000.

Loss of pre-trial earning

30) The deceased died three years or so after the accident and before the trial. It is agreed that he is entitled to two full years' pay, and he could have resumed working as a manual worker at $6,000 per month for the third year and notional deduction should be made. The issue is the amount of the monthly wage at the time of the accident.

31) The actual wage record shows that between 17 and 25 March 1997, the deceased worked nine days as a welder earning $1,800 per day inclusive of overtime less the costs of oxy-acetylene fuel. During the same period, he worked three days removing debris earning $800 per day.

32) The Answer to the Revised Statement of Damages pleaded the monthly wage was $1,750 per day x 20 days. Mr Chan sought to rely on $1,750 per day x 26 days. It was submitted that the employment and employee's compensation records show that the deceased worked 26 days per month. And the fact that the deceased worked nine days out of 10 during 17 and 25 March 1997 is consistent with a 26 days per month.

33) Mr Chau submitted that the monthly wage should be $950 per day x 26 days. Periodical payment under employee's compensation was calculated on this basis. Mr Chau accepted that $950 did not include overtime and allowances. However, in the absence of any evidence as to what those payments were, $950 should be adopted.

34) The 1st and 2nd defendants have been represented by the same solicitors all along but Mr Chau could not offer any explanation as to why $1,750 was pleaded.

35) Mr Chan submitted that $1,750 per day could be justified as follows: take the basic wage of $950 per day, add two hours' overtime at say 1.5 times, i.e. $356, and assuming that the deceased earned an extra $800 per day for removing debris once every three days, i.e. $267 per day on average, then the total amount is $1,573 per day. The figure will be higher if overtime is calculated at two times. As the figure more closely approximates the pleaded figure of $1,750 than $950 does, $1,750 should be adopted in the absence of evidence to the contrary by the defence.

36) I accept the submission of Mr Chan and find the daily wage was $1,750. I find that the deceased worked 26 days per month. Hence, the loss of pre-trial earnings are as follows :

$1,750 x 26 days x 24 months + ($1,750 x 26 days - $6,000) x 12 months = $1,566,000.

Loss of earning capacity

37) The deceased claimed $100,000. As he died three years after the accident and the period is already covered by the loss of pre-trial earnings, no sum is allowed.

Hospital and outpatient expenses

38) Hospital charges of $3,850 and 60 visits at outpatient department at $2,640 are claimed. No receipts are produced. Having regard to the injuries, the sums are reasonable and are allowed.

Travelling expenses

39) Travelling expenses for 80 visits to the hospital by the deceased wife at $9,600 and 60 visits at outpatient department by the deceased at $7,200 are claimed. No receipts are produced nor mode of transport explained. I find the sums reasonable and allow them.

Medical appliance and equipment

40) $3,200 is claimed. No receipt nor explanation is given. The defence agreed to $1,000. $1,000 is allowed.

Tonic food

41) $30,000 is claimed. No receipt is produced. In the absence of evidence of the nature and need of such items, only nominal sums are allowed (see Yu Ki v. Chin Kit-lam & anr. [1981] HKLR 419 and Kings Light Industrial Limited v. Lo Wai-keung CACV No.80 of 1992). In view of the injuries and duration of convalescence, I shall allow $10,000.

Acupuncture expenses

42) $30,000 is claimed. No receipt is produced. Mr Chau conceded that in view of the numbness of the limbs, it is reasonable that such traditional treatment is tried. I shall also allow the reasonable sum of $10,000.

Summary on quantum

(1)	Pain, suffering and loss of amenities	$220,000
(2)	Loss of pre-trial earnings	$1,566,000
(3)	Other special damages	$44,290
		$1,830,290 ========

Employee's compensation

43) Credit should be given for the amount of employee's compensation awarded in ECC No.304 of 1998 and/or paid under the Employees' Compensation Ordinance.

Interest

44) Interest at half judgment rate will be awarded on the pre-trial losses from the date of the accident to the date of judgment and thereafter at judgment rate until payment. Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Costs

45) The 1st and 2nd defendants shall pay the costs of the action to the plaintiff. The Plaintiffs' own costs to be taxed in accordance with Legal Aid Regulations.