CHEUNG KAI CHI v. CHUN WO CONTRACTORS LTD AND ANOTHER

CACV 98/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 98 OF 2006

(ON APPEAL FROM HCPI NO. 572 OF 2004)

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JUDGMENT

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Hon Tang VP:

1.  The deceased had been employed by the 2^nd defendant as a welder for 7 years prior to the accident, and at the material time, was engaged as a welder ganger at the construction site at Choi Hung Park and Ride Development at Clearwater Bay Road (“the Site”).

2.  The 2^nd defendant was a specialist contractor engaged by the 1^st defendant for the foundation and piling work at the Site.  The 1^st and 2^nd defendants were companies in the same group with a common insurer.

3.  On 13 March 2002, the day of the accident, the deceased began work at 8:30 am.  The deceased and his gang had been doing welding work at a drill head on the Site for several days.  The drill head was placed upside down behind a crawler crane in the Site.  It was circular in shape and had a diameter of 1.42 metres and a height of 1.37 metres.  The width and height of the rear of the carriage of the crawler crane were 2.5 metres and 1.35 metres respectively.

4.  At about 11:05 am, the Deceased was found lying on the ground between the rear of the crane and the drill head.  He was wearing protective clothing and welding gloves.  His helmet, cap and a pair of broken goggles were found in the vicinity.  It seems clear, however, from the position of the welding equipments, that he was not doing any welding work when the accident occurred.  The deceased was certified dead upon arrival at hospital.  There was no eye-witness to the accident.

5.  The autopsy report showed that he suffered severe injuries which resulted in a fracture separation between the 5^th and 6^th cervical vertebra with complete transaction of spinal cord and multiple fractures of the individual vertebrae.  The cause of death was neck and chest injuries.

6.  This is what H H Judge To said in his judgment of 25 October 2004 in the employee compensation proceedings which was quoted by the learned trial judge (Deputy Judge L Chan) in para. 10 of the judgment:

“	6.	According to the investigation of the Labour Department, while the crane was being operated for hoisting purposes the rear carriage of the crane would travel in a slewing motion creating a trapping area between the rear carriage of the crane and the drill head.  During the rescue operation of the Deceased, the crawler crane had to be moved forward.  A re-construction of the scene of the accident showed that a clearance between the dead end of the rear carriage of the crane and the drill head was about 15 centimetres.
	7.	The severity and multiplicity of the injury which resulted in the complete separation of the cervical vertebrae and severance of the Deceased’s spinal cord suggests that the injury was caused by mechanical force.  The location where the Deceased was found, the trapping area between the rear carriage of the crane and the drill head, the fact that at the material time the crawler crane was being operated which created a slewing motion all point to one and only one inference, that is the Deceased was crushed to death by the slewing motion of the crawler crane while he was trapped between the crane and the drill head.”

7.  Regulation 8(1) of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations, Cap. 59J provides:

“	8.	Precautions to be taken where lifting appliance has travelling or slewing motion
		(1)	Subject to paragraph (2), on every stage, gantry, or similar place where a lifting appliance having a travelling or slewing motion is in use, the owner of the appliance shall ensure that an unobstructed passageway, not less than 600 millimetres wide, is maintained between any part of the appliance liable so to move and any nearby guard rail, fence or other fixture.
		(2)	If at any time it is impracticable to maintain any such passageway at any particular place, the owner shall ensure that all reasonable steps are taken to prevent persons from having access to that place when the appliance is in use.”

8.  This is what the learned judge said in paras. 6 and 7 of his judgment:

“	6.	At about 10:30 am, the Deceased asked the crawler crane signaller to direct the crane to transport an electric generator from a truck and place it at the right front of the crane.  He needed the generator for the welding repair to the drill head.  After that, the crane operator Mr Lee Tai Wai continued to operate the crane for other tasks.  The Deceased then went to the drill head and asked his two fellow welders to stop their repair work at there and to erect some railing at the hoarding.
	7.	Between 10:45 and 11:05 am, the foreman instructed the crane operator to hoist a sand pump from one spot in the Site to another spot near the Site entrance.  In performing this task, the carriage of the crane had to turn from one side to another.”

9.  Presumably, it was during between 10:45 and 11:05 am that the accident occurred.  When the crane operator was trying to hoist the sand pump, 2 persons were present to give signals to the crane driver.  They were Mr Cheng Kam-tai, the site foreman, and Mr Wu Chi-keung.  They were in the respective positions shown in the sketch which was Appendix 3 in the Fatal Accident Report dated 15 August 2002 (“the Report”).

10.  It is quite clear, however, that positioned as they were, they did not have a sight of the rear of the carriage.  Furthermore, according to the Statement of Facts “… there were no audio and visual signals installed on the crawler crane …”.

11.  On such evidence, the learned judge concluded that the employer was in clear breach of Regulation 8(1).  The defendants were also in breach, as the learned judge said, of Regulations 38A and 38AA of the Construction Sites (Safety) Regulations in failing to ensure that every place of work was safe.

12.  The learned judge said, although the defendants did not contest liability, they “contested that the Deceased was guilty of contributory negligence”.  The defendants submitted that the deceased was in breach of Regulation 20 of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations which made it an offence for any workman who works on or near any lifting appliance, to wilfully and without reasonable cause do anything likely to endanger himself or others.

13.  However, this submission was rejected by the learned judge, he said he did not “think there is sufficient evidence to support this … contention”.

14.  The learned judge, after a review of authorities on contributory negligence, concluded that “each case must depend on its own facts”.

15.  The learned judge went on to say:

“	25.	Coming back to the facts of this case, it is not known why the Deceased should have gone to the location of the accident.  If he was facing the drill head, it was likely that he was examining it or the repair previously done on it by his subordinates.  It was less likely that he was just walking pass.  If he were walking pass, he would have been aware of the motion of the crane and would have taken some avoidance action.  It was also unlikely that he was facing the rear of the crane, as he would also have taken steps to escape from the impact.  I hold on a balance of probability that he was examining the drill head when the crane carriage slew around and crushed him at the back.  Otherwise, there was no cause for him to be there with his back to the crane.
	26.	I accept the Defendants’ submissions that the Deceased had ample experience in working in construction sites.  He had been with the 2nd Defendant for 7 years, not to mention his previous experience.  He was also the ganger of the welders.  He knew that the crane was being used.  The crane and the drill head had been in their positions for a few days prior to the accident.  He had received ample training on safety.  He therefore knew or ought to have known that the gap between the rear of the crane and the drill head was a risky place.  If it was really necessary for him to inspect the drill head at that time, he should have told the crane operator to stop working for a while and not to resume until he had finished with his inspection.  An employee whilst discharging his duties to the employer also owes a duty of care to himself.  I find that the Deceased had breached this duty and I fix his contributory negligence at 25%.”

16.  This is the plaintiff’s appeal against the finding of contributory negligence.

17.  Mr Wong, appearing for the defendants, reminded us of the principles governing appeals from a judge’s apportionment of liability.

18.  These principles were summarised by Rogers VP in Tsoi Yau Ya v Chan Kwok Hung & Another CACV 317 of 2002:

“

It may be that a different court might have come to a different apportionment. It must however be borne in mind that the apportionment for contributory negligence is a discretionary exercise. As Sir Thomas Eichelbaum NPJ said in Wishing Long Hong v Wong Kit Chun (2001) 4 HKCFAR 289 at 298B, an appellate court is justified in interfering only in exceptional circumstances and he referred to British Fame (Owners) v Macgregor (Owners), The Macgregor [1943] AC 197. The question of apportionment is a matter in respect of which a trial judge almost invariably has a considerable advantage, having heard the witnesses and made his own assessment as to the nature of the dangers involved. As was said in the speeches of the House of Lords in The Macgregor, it would take a very strong case for an appellate court to interfere on a matter of apportionment where the same view is taken of the law and the facts: see e.g. Lord Wright at page 201.’ [Paragraph 8]”

19.  I have carefully borne those principles in mind.  However, on the facts of this case, I feel able to interfere.

20.  It will be remembered that the learned judge rejected the defendants’ allegation that the deceased was in breach of Regulation 20 of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations had wilfully and without reasonable cause done anything likely to endanger himself.

21.  The learned judge held that the deceased was examining the drill head with his back to the crane when the accident occurred.  The learned judge said:

“

26.

… If it was really necessary for him to inspect the drill head at that time, he should have told the crane operator to stop working for a while and not to resume until he had finished with his inspection. …”

22.  As I have said no one witnessed the accident, nor was it known exactly when or how it occurred.  The evidence was that between 10:45 and 11:05 am, the foreman instructed the crane operator to hoist a sand pump.  The evidence also showed that the deceased was last seen alive at about 10:45 am.  In other words, the deceased might have been killed as soon as the crane started to move.  As the Report stated:

“

16(v)

No person was stationed at the rear of the crawler crane where the crane operator did not have a clear and unrestricted view, to prevent the approach of workers to the working areas that would be endangered by the operation of the crane.”

Nor could the operator see from the rear view mirrors “the persons working behind the crane”.  And as was noted the crawler crane was not equipped to give any audio or visual signals by way of warning.

23.  The Report went on to say:

“	11.	At the time of the accident, two male workers were performing ground-holes digging work behind the rear carriage of the crawler crane (Photo 14).
	12.	Neither barrier, fencing nor demarcation to prevent the approach of the workers to the dangerous operating areas of the rear carriage was provided.  The workers had to escape from time to time to avoid dangers arising from the slewing motion of the crane”.  (Emphasis added)

24.  In the graphic phrase of one of the workers (diggers) for about 3 days (up to the day of the accident) the workers had to “左閃右避，以防吊機機身轉動時碰倒他們” and that he was certain that there was no warning from any person in authority at the Site to warn them to be careful of the crawler crane.  Indeed, in such circumstances, I would regard, e.g. a posted sign warning workers of the dangers of the crane to be a mockery.  That is as useless as signs telling workers to wear safety harnesses when none is provided.  There were safety lessons, no doubt given with the help and encouragement of government industrial safety inspectors, principally teaching workers how to work safely in a safe working environment.  The lessons are not really meaningful if workers had to work in an unsafe environment.

25.  According to the evidence the clearance between the drill head and the rear end of the crawler crane was about 15 centimetres when the deceased was found.  As Photo 1 shows the Site was “a little bit congested”.

26.  Moreover, according to the Report:

“

9.

Newly formed metal scrapping marks with notable resemblance both in shape of cut and height of the marks were found at the rear carriage of the crane as well as the drill head.  It was obviously (sic) to believe that those marks were formed as a result of the collision of the rear carriage and the drill head.” (Photo 12 and 13)

27.  The deceased was wearing protective clothing and welding gloves at the material time.  It is entirely probable that he was examining the weldings on the drill head and in doing so, strayed into the path of the crawler crane which moved without any warning.  As noted, the crawler crane gave no audio warning at any time.

28.  Ms Winnie Chan, who appeared for the plaintiff, reminded us of what Lord Wright said in Caswell v Powell Duffryn Associated Collieries Ltd. [1940] AC 152 at 178 that:

“

..... what is all-important is to adapt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his pre-occupation in what he is actually doing at the cost perhaps of some inattention to his own safety .....”

29.  In Hutchinson v London & North Eastern Railway Co [1942] 1 KB 481 at 485, Lord Greene MR said:

“	I will call attention to one matter which is of great importance in dealing with the breach of a statutory rule which is made as much to protect the men against their carelessness as it is to protect men who are careful.”

and then at 488 Goddard LJ said:

“

..…. It is only too common to find in cases where the plaintiff alleges that a defendant employer has been guilty of breach of a statutory duty, that a plea of contributory negligence has been set up. In such a case I always directed myself to be exceedingly chary of finding contributory negligence where the contributory negligence alleged was the very thing which the statutory duty of the employer was designed to prevent. The real incentive for the observance by employers of their statutory duties ..... is not their liability to substantial fines, but the possibility of heavy claims for damages. Such legislation would be nugatory if, in every case, employers could disregard the statute, and allege that .... The plaintiff could see the danger and, therefore, ought to have ceased working, which in many cases might mean dismissal, or to have taken some extra precaution which was not taken.”

30.  The burden of proof of contributory negligence was on the defendants, and when:

“

..... The evidence is as consistent with all those things having been the case as with their not having been the case, and, in my view, where there is a defence of contributory negligence in an action based on breach of a statutory rule which is designed to protect men as much from their own carelessness as from anything else, it is wrong to draw inferences unfavourable to a deceased man …” per Lord Greene MR at 486 in Hutchison.

31.  The learned judge seemed to have taken the view that the deceased was working with his back to the crane before the accident and that he had deliberately placed himself in the narrow gap between the crane and the drill head.  But it is not clear on the evidence that the clearance between the rear of the carriage of the crawler crane and the drill head was sufficient to permit that.

32.  It is undeniable, however, that the deceased was so close to the rear carriage of the crane that on the carriage being moved, he was crushed to death.  But there was no evidence that when the deceased approached the crane it was not stationary.  According to the operator of the crane, it only took 1 or 2 seconds for the crane to go from stationary to action.  As noted, the crane started to move without any warning.  I have read the judgment of Yuen JA in draft.  She said that the deceased would definitely have known that the crawler crane was in operation.  “Even if the crawler carne had been stationery, it could not have been for such a long period that the deceased could reasonably assume that the crane had suspended its operations for a restrained period, say for the operations meal break”  That might be so. But sporadic breaks could be dangerously alluring.

33.  I also believe the learned judge failed to have regard to the fact that works on the Site were being carried on in a highly dangerous manner.  It will be remembered from the Report highlighted in para. 23 above that the system of work was highly dangerous.

34.  Given that the learned judge rejected the defence that the deceased “wilfully and without reasonable course does [something] likely to endanger himself”, it was just as probable that the deceased was crushed to death when he was examining the welding work at the drill head and that he drifted too close to the gap between the carriage and the drill head due to momentary inattention or carelessness.  On the authorities, a worker would normally not be regarded as guilty of contributory negligence in such circumstances.

35.  It is true that the deceased had attended industrial safety classes which reminded workers to be careful whilst working near a crane, but the reality was that workers had to work in close proximity to the crawler crane so that they had to “左閃右避”.  The primary duty to provide a safe working place is on the employer, a worker who consents to work or continues to work in an unsafe working place should not normally be regarded as being liable for contributory negligence.  If the court is too ready to find contributory negligence it might encourage employers to be less careful, and their insurers to be less eager to insist on compliance with industrial safety.  I do not encourage workers to ignore their own safety.  Indeed, I would earnestly urge them to refuse to work when it is dangerous to do so and report their employers to the authorities.  But the court has to use common sense and appreciate the reluctance of workers to speak up for themselves.  Yuen JA also said that there was no evidence that the deceased might have been dismissed.  I accept that there was no evidence.  But it is rare for there to be such evidence.  An employer is unlikely to dismiss a worker on such ground.  Lord Goddard recognized that complaints “in many cases might mean dismissal”.  Also a worker who insists on his right might find it difficult to find a job and his contract of employment might not be continued.  If the Site was otherwise well run and safe, a worker who took unnecessary risk could be found liable for contributory negligence, but the situation is very different when the work place was a highly dangerous one.  In such circumstances, the workers are left, in effect, with the unenviable choice of quitting or accepting exposure to great risks.  Here, suppose it was one of the workers who had to “左閃右避” who was injured or killed, I believe the fact that they had to work in such circumstances means that a finding of contributory negligence would normally not be unwarranted.  It is clear from the passages in the judgment quoted by me that the learned judge had failed to pay sufficient regard to the very unsafe system of work at the Site.  In such circumstances it was unreal to say that the deceased or the diggers should have told the crane operator to stop.  So this is another reason why I feel able to interfere with the finding of contributory negligence.

36.  To conclude, on the facts of this case, had the learned judge had proper regard to the burden of proof and the highly unsafe system of work at the Site, I feel sure he would not have found that there was no contributory negligence.

37.  I would allow the appeal.  I also agree with the judgment of Yeung JA on the appeal against quantum.

Hon Yeung JA:

38.  I have read the draft judgment of Tang VP on the issue of liability.  I agree with his judgment and conclude that there was no contributory negligence on the part of the deceased.

39.  In aid of the appeal against the quantum of damages, the appellant sought to adduce fresh evidence relating to (1) the cash value of two life policies that the deceased would have realized, and (2) a new education course that the deceased’s younger son had joined in August 2007.

40.  Ms Winnie Chan, counsel for the appellant, suggested that those fresh evidence could not have been obtained with reasonable diligence for use at trial.

41.  When enquires were made by the appellant’s solicitors of the amounts redeemable under the policies in question, the insurance company, over the telephone, replied that “they could not confirm the interests as they’re subject to fluctuations”. The follow-up written response simply suggested that the annual dividend and dividend interest were not guaranteed and might change. The appellant’s solicitors did not take the matter further and chose not to subpoena the insurance company to give evidence. If they did, what they wanted to adduce as fresh evidence could have been adduced before the judge.

42.  If it was the appellant’s case that the deceased’s younger son had the plan to pursue further education, evidence could have been adduced to that effect and the judge would have been in a position to assess the impact of such a plan on loss of dependency. The new education course that the deceased’s younger son had joined in August 2007, reflecting a change in his plan, could not properly be admitted as fresh evidence before the Court of Appeal.

43.  We were not satisfied that the appellant’s application to adduce fresh evidence met the criteria laid down in Ladd v Marshall [1954] 3 All ER 745 and we therefore rejected the application.

44.  In relation to the quantum of damages, the judge made the following relevant findings:

“	1.	The deceased’s earning, after deducting the $1,000 MPF contribution, would be about $23,000 per month. The deceased would spend $4,560 per month as pocket money and would give his mother $500 per month. The amount for the upkeep of a family of 5 would be $17,940 and the deceased’s share would be $3,000. The judge rejected the widow’s evidence that out of the $4,560 pocket money, the deceased would spend a significant part of it on the family.
	2.	An overall multiplier of 9 was adopted, but multipliers of 7 and 6 would be adopted for the deceased’s younger son and the deceased’s mother. The judge took the view that the deceased would probably have worked beyond 60 and therefore adopted a higher multiplier.
	3.	The monthly loss of dependency of the widow, the younger son and the deceased’s mother is $6,470, $6,470 and $500 respectively. The 45 months’ pre-trial loss of dependency for the widow and the younger son is therefore $6,470 x 45 months x 2 = $582,300 and the 45 months’ pre-trial loss of dependency for the deceased’s mother is $500 x 45 = $22,500. The future loss of dependency for the widow is $6,470 x (9 x 12 months – 45 months) =$407,610. The future loss of dependency for the younger son is $6,470 x (7 x 12 months – 45 months) = $252,330 and the future loss of dependency for the deceased’s mother is $500 x (6 x 12 months – 45 months) = $13,500. The judge concluded that the pre-trial, and future losses of dependency are $604,800 and $673,440 respectively, making a total loss of dependency of $1,278,240.
	4.	The savings up to September 2004 should be $24,000 per annum x 2.5 years = $60,000. There would be no saving from September 2004 to June 2008 when the younger son pursued his university studies and the saving at $2,000 a month for 10 months would resume thereafter until April 2009. The monthly saving by April 2009 when the younger son finds a job would be $8,500 and such saving would continue for 2 years. The total loss of savings would be $60,000 + $2,000 x 10 months + $8,500 x 12 x 2 = $284,000. There would also be the MPF contributed by the deceased and his employer of $2,000 a month. The principal of the MPF would therefore be $2,000 x 12 x 9 = $216,000. The judge rounded up the loss of saving to $450,000.”

45.  The appellant’s appeal against the quantum of damages relates to the judge’s findings of loss of dependency and loss of savings only.

46.  Ms Chan complained against the judge’s finding that the deceased’s share of his income amounted to $3,000 (share of the household expenses) + $4,560 (pocket money) = $7,560, being 33% of his net income.

47.  Ms Chan, pointing out the widow’s evidence that the deceased was frugal and only spent about $3,000 a month on travelling and food when working, emphasized that there was no evidence showing that the deceased squandered money or had any expensive/undesirable habit.

48.  Ms Chan further submitted that the insurance sum of $2,660 should not be included as part of the family expenses as it was more in the nature of savings and provision for the future.

49.  Ms Chan suggested that the deceased’s share of the family expenses should only have been about $2,000, and therefore a reasonable estimate of the deceased’s share of his income should only be $3,000 + $2,000 = $5,000 or at most $6,000 (about 22% or 26% of his net income of $23,000), and not $7,560 (33% of his net income).

50.  Ms Chan relied on Harris v Empress Motors Ltd [1984] 1 WLR 212 to support her contention that 25% of the net income represents a fair portion of the deceased’s share of his income.

51.  If the deceased’s share of his income was fixed at 22%, the overall dependency of the widow, the younger son and the deceased’s mother together with the pre-trial loss of saving would be 78% of his income, i.e. $23,000 x 78% x 45 months = $807,3000.

52.  If the % was fixed at 25%, the pre-trial loss of dependency and saving would be $23,000 x 75% x 45 months = $776,250.

53.  Ms Chan therefore suggested that the award made by the judge under these heads of $604,800 + $60,000 = $664,800 is inadequate.

54.  In particular, Ms Chan submitted that when the deceased died, the two elder children had just started working and would make substantial contribution towards the maintenance of the family, including paying the school fees for the younger son. The family would be able to continue saving during the period when the younger was pursuing university studies. There should therefore be an award for the pre-trial loss of savings for the entire period of 45 months, namely $2,000 x 45 = $90,000 and not $60,000.

55.  Ms Chan suggested that if the deceased’s share of his net income was 22%, the future dependency of the younger son, the widow and the deceased’s mother would be $5,147, $10,294, and $500 per month respectively, and if the deceased’s share of his net income was 25%, those figures would be $4,917, $9,834 and $500. Adopting those figures, the award for future dependency should be:

-	for the younger son, $5,147 x (7 x 12 – 45) +  $127,200 = $327,933 or $4,917 x (7 x 12 – 45) + $127,200
	= $318,963;
-	for the widow, $10,294 x (9 x 12 – 45) - $127,200
	= $521,322 or $9,834 x (9 x 12 – 45) -$115,200 = $492,342; and
-	for the deceased mother, $500 x (6 x 12 – 45)
	= $13,500.

56.  The total award for future loss of dependency should therefore be $327,933 + $521, 322 + $13,500 = $862,955 or $318,963 + $492,342 + $13,500 = $824,805 and not $673,440 as found by the judge.

57.  On the loss of savings, Ms Chan emphasized the deceased’s strong saving habit, the various life and medical policies that the deceased had taken out and the fact that he was already making contribution towards his pension fund well before the MPF was introduced.

58.  Ms Chan, relying on Lam Pak Chiu v Tsang Mei Ying [2001] 2 HKC 1 and Mok Merla v Ocean Crown Transportation Ltd HCPI 266/1998, rightly pointed out the relevant factors that the Court has to take into consideration, namely (a) the savings of the deceased could have made at the end of his working life; (b) the depletion of his savings while the deceased was in his retirement; (c) the discount for early receipt.

59.  Ms Chan argued that the judge was wrong to conclude that the deceased would not be able to make any savings during the three-year period when the younger son was pursuing university education.

60.  Ms Chan further argued that the judge was wrong to, (1) refuse to accept that the two elder children would have made contribution towards the maintenance of the family during this period, (2) ignore the likelihood that the dependency of the two elder children would be reduced gradually during this period, and (3) fail to take into account the deceased’s history of keenness of making provision for the future.

61.  Ms Chan pointed out the possibility of the deceased continuing to work until his is 65 and his ability to save more when the need to maintain his mother and mother-in-law ceased. Ms Chan suggests that after the younger son’s dependency for 7 years ended, the deceased could have continued to work for another 10 years and the multiplier of 2 adopted by the judge was too short as it represented a discount of 80% of what the deceased would have saved at the end of his working life.

62.  Ms Chan suggested the deceased could have saved cash of over $2 million plus the matrimonial home at the end of his working life and when considering the extent of depletion of these assets, the court should take into consideration factors such as the couple would not need to pay rent; the cash savings and the MPF would have earned interest and other investment income; the three children were likely to make some contributions towards the maintenance of the couple and that it was unlikely, bearing in mind the couple’s frugal life style, that they would spend much money to improve their quality of life.

63.  Ms Chan suggested that the couple would need, at most, $10,000 a month for their maintenance after the deceased retired and assuming a monthly interest income of $5,000 and a contribution of $3,000 a month from the children, the couple’s savings would only be depleted by $2,000 a month.

64.  Ms Chan further suggested that in all the circumstances of the case, the loss of savings should be assessed in the sum of about $1.4 million.

65.  Mr Wong Chi Kwong, counsel for the respondent conceded that there should be an increase of $152,000 to the younger son’s loss of dependency, being the tuition fees of his university studies.

66.  However, Mr Wong objected to the appellant’s complaints in respect of loss of dependency and loss of savings.

67.  Mr Wong emphasized the need to be flexible, based on the evidence and refers us to the decision of Beldam LJ in Owen v Martin and Others [1992] PIQRQ 151:

“

No doubt there will be many claims under the Fatal Accidents Acts where parties agree that a conventional proportion is appropriate. I do not, of course, suggest that in arriving at the extent of the financial provision made by the deceased the court is bound to base its assessment precisely on the percentage of net earnings disclosed by sums spent for the benefit of dependents but the court is not entitled to cast aside altogether evidence which shows the proportion of the deceased’s income actually spent for the dependents’ benefit during his lifetime and to substitute a figure however conventional or appropriate in other cases.”

68.  Mr Wong supported the judge’s assessment of the loss of dependency and savings. Mr Wong suggests that the judge’s finding on his monthly expenses was supported by evidence and that the judge was right to reject the widow’s evidence.

69.  Assessment of damages can never be absolutely accurate and the Court of Appeal must respect the decision of the trial judge who had heard the evidence.

70.  The Court of Appeal would only interfere with the assessment of damages if the trial judge was found to be in serious error or acting upon a wrong principle of law or that the amount awarded was so high or so small as to make it, in the judgment of the appellate court, an entirely erroneous estimate.

71.  The classic exposition of the approach to be adopted was that of Greer LJ in Flint v Lovell [1935] 1 KB 354 at 359:

“

I should like to add a few words about the jurisdiction of this court in appeals where the only contention, or one of the contentions, is that the damages warded by the judge hearing a case without a jury are excessive. It is not possible to say that the tests which have been laid down in cases like Phillips v London & Smith Western Railway Co apply to an appeal from a judge trying a case without a jury, because an appeal is a rehearing by the court with regard to all the questions involved in the action, including the question what damages ought to be awarded, but though the established rules with regard to the  decisions of juries do not apply to appeals from the decision of judges trying cases without the assistance of a jury, I think it right to say that this court will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial judge on the question of the amount of damages, it will generally be necessary that this court should be convinced ether that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”

72.  We are in complete agreement with the aforesaid observation. Indeed the Court of Appeal had adopted such approach in previous cases (see Chan Tak Him v Wong Tit Kin & Another CACV 495/2001 and Chan King Wan & others v Honest Scaffold General Contractor Co Ltd & Another CACV 290/2000).

73.  We also wish to echo what Litton PJ said in Lam Pak Chiu v Tsang Mei Ying [2001] 1 HKLRD 193 at p 210-211:

“

Where a tribunal is sailing in uncharted waters, it would be wise to take as many bearings as possible. A judge, after having heard all the evidence, may have a tentative global sum in mind. Where it is multiplicand-multiplier formula, but remembering that this too is, by its nature, an inexact exercise. If the resultant figure more or less coincide, the judge can be reasonably confident that his global sum is not far off the mark…So long as trial judges weigh up the evidence carefully and apply common sense, it is unlikely that appellate courts would interfere. Rightly so. If there is one area of law where courts have to be mindful of the incidence of legal costs, lest awards of damages be eaten away by the expense of fruitless attempts to achieve theoretical perfection, it is in the personal injuries field.”

74.  Ms Chan complained against the judge’s estimate that the deceased’s share was 33% of his net income and seeks to rely on Harris v Empress Motors Ltd (supra) to justify her complaints. We note that Harries v Empress Motors Ltd concerned a family of 4 and 25% of the deceased’s income might well be a reasonable figure to adopt as his share of the family expense.

75.  Whether the judge’s estimate is a fair one depends on the facts of each case. The extent to which the conventional figure of 25% adopted in Harris v Empress Motors Ltd is helpful is doubtful.

76.  The judge, having heard all the evidence, concluded that the widow’s evidence on the deceased’s expenses would not be accepted, as his income could not have met those expenses.

77.  The judge rejected the widow’s evidence that the deceased’s monthly personal expenses was only about $3,000. The judge also rejected the suggestion that the deceased’s share of the family expenses was only $2,000. 

78.  Ms Chan sought to raise the same issues and argued that the payments mentioned by the widow might not be regular payment. As pointed by Mr Wong, it was never the widow’s evidence that those were irregular payments.

79.  Ms Chan submitted that the dependency of the younger son and the widow should be about $5,000 and $10,000 a month respectively and that the deceased’s share of his income should also be about $5,000.

80.  The fallacy of Ms Chan’s submission was that on her calculation, the younger son (a student) required as much to support himself as the deceased (a building worker) and the widow (a housewife), required twice as much.

81.  We are not persuaded that Ms Chan was right.

82.  There is no doubt that the deceased was a dutiful husband and father and that he had done much for the wellbeing of the family.

83.  However, the optimistic suggestion that the two elder children would make substantial contribution towards maintenance of the family is a matter of conjecture.

84.  The possibility of the couple having to assist their children at the early stage of their setting up their own families could certainly not be ruled out, in which event, the couple’s savings would be been significantly depleted.

85.  There is the possibility that the deceased might want to retire earlier after the three children had all grown up and that the couple would be sensible enough, after his retirement, to be more generous to themselves. It is also likely that the couple might have to spend large sums as medical expenses.

86.  All such possibilities perhaps explain why it is difficult to determine the level of savings in a fatal accident case, and the court can only adopt a rough and ready approach.

87.  The three cases, HCPI 588/1999, HCPI 593/1999 and HCPI 598/1999, relied on by Ms Chan to show higher awards of loss of savings of $1.8 million, $0.9 million and $1 million involved persons of much younger ages than the deceased, or persons earning higher incomes, or both.

88.  We have carefully considered the judge’s approach to the issues. While the judge’s assessment may not be very generous, there is no indication that he had act upon some wrong principle of law, or that the amount he awarded was so very small as to make it an entirely erroneous estimate.

89.  There is no valid ground upon which we can interfere with his assessment, other than making the necessary order to reflect the concession made by Mr Wong.

90.  The appeal against the judge’s assessment of damages, on a 100% liability basis, is allowed to the extent that $152,000 would be added to the award of loss of dependency of $1,278,240.

Hon Yuen JA:

91.  Much as I sympathize with the deceased’s family on the loss of a good husband and father, I regret I am unable to agree with Tang V-P and Yeung JA on the issue of contributory negligence.  I agree with their judgments on the application to adduce fresh evidence and on the issue of quantum.

92.  A decision of a trial judge as to contributory negligence and the apportionment of responsibility is treated as a finding of fact (Cheung Lee Man v Chan Wai Wing CACV 179/2006, C.A. (Rogers VP, Le Pichon JA, Barma J).  I will not repeat the authorities explaining how and why a trial judge has a considerable advantage over an appellate court in respect of findings of fact.  It is well-established that a trial judge’s decision on contributory negligence should not be interfered with unless there are exceptional circumstances.  I am not persuaded that such circumstances exist in this case.

93.  The circumstances surrounding the accident were unfolded in the evidence that the trial judge saw and heard.  He heard the witnesses describe the positions of the crawler crane and the drill head, and heard them attest to their awareness of the dangers of being in the proximity of the crawler crane.  It allowed him to analyse the nature and evaluate the risks of the accident, standing as it were in the shoes of deceased.

94.  It is beyond doubt that the defendants were guilty of negligence in not having fenced off the “trapping area” between the crawler crane and the drill head, but equally it is clear that this was not a case where an accident was caused unexpectedly by part of a machine malfunctioning or becoming dislodged.  The crawler crane was operating normally.  The accident was caused by the deceased approaching it and entering the trapping area.

95.  The building workers knew about crawler cranes and their slewing motions.  They knew they had to be wary of them.  That was clear not only from the imagery evoked by the digging worker’s statement, but also from the evidence at trial given by the Plaintiffs’ own witness Chan Kwok Fai, who said that both in theory as well as in practice, the crawler crane was moving all the time, and that everyone would know that he should not walk close to it as he would get struck by it (Transcript p.92-93).  The common awareness of the dangers posed by the crawler crane does not, of course, excuse the defendants - the negligence on their part is acknowledged, but it provides an insight into what the deceased knew before he made the fatal mistake of putting himself between the crawler crane and the drill head.

96.  The deceased was not a novice on the construction site - as an experienced man who had undergone safety training, he was familiar with the actions of crawler cranes like these and he would have been aware of the dangers posed by their slewing motions.  Having in fact himself employed the services of the crawler crane (in moving the electric generator) that very morning, he would have seen for himself that it moved speedily and quietly.  Yet he placed himself in the extremely risky position of being close behind it.

97.  Why did he do that?  The trial judge found, after considering the fact that the deceased was wearing protective clothing but that his helmet and goggles had been left at another place, that he was probably examining the part of the drill head close to the crawler crane (para. 25).  The judge’s inference is a reasonable one.  And as the deceased was examining the drill head for the purposes of doing his work as a welder, the judge was right to find that the deceased was not guilty of the offence of “wilfully and without reasonable cause” doing something likely to endanger himself.

98.  It has been argued that the fact that the judge did not find the deceased guilty of that offence means that the judge was wrong to find contributory negligence.  With respect, it does not follow.  One can understand why the judge found that the deceased had “reasonable cause” to approach the area behind the crawler crane - that was because he was examining the drill head for the purposes of doing his work as a welder.  He was not, as it were, on a frolic of his own.  But the judge was also entitled to find that the deceased was negligent when he placed himself close behind the crawler crane, perhaps in the hope that a quick look would be sufficient.  Although his subordinates had been working on the drill head the day before, they had not done any work on that side of it (see the statement of Wu Tak Chi, Documents bundle, p. 46).

99.  It has been argued that the deceased may have approached the trapping area when the crawler crane was stationary, but the evidence from the crawler crane operator Li Tai Wai was clear that it was in operation continuously that morning.  According to his statement (Documents bundle p.43, answers 6 and 7) he finished lifting the generator for the deceased at 10:30 a.m. Between that time and 11:00 a.m., when the crane was used to lift the pump, it was used also to lift a concrete machine and some metal chains.  As the deceased had himself employed the crane’s services shortly before the accident, he would definitely have known that the crawler crane was in operation.  Given the evidence on the operation of the crawler crane between 10:30 a.m. and 11:05 a.m. and the fact that the deceased was seen alive at 10:45 am but was discovered fatally injured at 11:05 a.m., even if the crawler crane had been stationary, it could not have been for such a long period that the deceased could reasonably assume that the crane had suspended its operations for a sustained period, say for the operator’s meal break.

100.  It has also been argued that in considering whether employees were contributorily negligent, regard must be given amongst other things to the slackening of attention from their having to repeat activities or from preoccupation with work, and the need to protect them against their own carelessness.  However on the evidence of the other welders the deceased spoke to at 10:45 a.m., at the time of the accident (between 10:45 a.m. and 11:05 a.m.) he would only just have started (or at most would have spent very little time) examining the drill head.  This is not like a case where a workman not supplied with protective gloves injures his fingers after hammering nails into planks for hours on end, where his momentary inattentiveness would not be cause for a finding of contributory negligence.  The evidence that the goggles had been placed somewhere else shows that the deceased was not preoccupied with doing any welding work at the time.

101.  The judge found that if the deceased wanted to examine that part of the drill head, he had other means of doing it (para. 26).  There was no evidence that he might have been dismissed if he had adopted those other means.  The deceased was the head of the team of welders on the site.  He had been working for the same company for 7 years.  He was in a position where, in order to facilitate his work, he could (and did) instruct the operator of the crawler crane to move an electric generator.  There is nothing to indicate that, in order to facilitate his work, he could not instruct the operator of the crawler crane to pause in its operations during his examination of that side of the drill head close to it.

102.  So whilst it is clear that the defendants must bear the bulk of the blame for this accident, it cannot be suggested that there was no evidence at all to support the trial judge’s finding of contributory negligence, nor can it be said that his finding was unreasonable.  I am not persuaded that the judge’s decision-making was deficient in any way.  It is also necessary to remember Lord Hoffmann’s words that a trial judge’s “expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance .... of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation”.

103.  In my view the judge was entitled on the evidence before him to find that the deceased was contributorily negligent and I am not persuaded that there are any exceptional circumstances in this case that justifies an appellate court’s interference with it.

Hon Tang VP:

104.  By a majority the appeal against the finding of contributory negligence is allowed.  The appeal against quantum (except to the extent indicated by Yeung JA) is dismissed.  Having regard to the fact that the plaintiff was partly successful on quantum, taking an overall view of the matter, we would make an order that the plaintiff should have four-fifths of its costs of the appeal.  We would not make a separate order for costs relating to the application to adduce further evidence.  That is to be absorbed in the overall order.  The plaintiff’s costs are to be taxed in accordance with the Legal Aid Regulations.