CHAN YAN NAM v. HUI KA MING TRADING AS KAR LEE ENGINEERING AND OTHERS

HCPI 1169/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO.1169 OF 2000

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J U D G M E N T

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1. The plaintiff claims against the defendants for damages for personal injury suffered by him as a result of an accident which befell him on 23 October 1997 when, while working at the outside wall of the first floor of a building, he fell to the ground and suffered a broken leg.

2. The plaintiff is a plumber and electrician and at the relevant time he was the subcontractor for plumbing and electrical works for the 1st defendant, who was the main contractor for decoration works ordered by the proprietor of Flat C, 1st Floor, Lee Wai Building, No.654 Nathan Road, Kowloon ("Flat C1"). The 2nd defendant was and remains the owner of Shop C on the ground floor and Flat C on the mezzanine floor ("Flat CM") of the same building, of which the 3rd defendant is the owners' corporation.

3. There is no dispute that the plaintiff was installing pipes on the outside wall of Flat C1 when he fell about 16 feet to the floor below. The main dispute of fact relates to what if anything was supporting him and this on this in turn depends the question of who should be liable. He was not on a purpose-built scaffold. Following the accident, the 1st defendant was charged with breach of Regulation 38B of the Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap.59 in that being the contractor responsible for the construction site, where work could not safely be done on or from the ground or from part of the building or other permanent structure, he failed to provide, place and keep in position for use scaffolds which were sufficient, strong and suitable for the purpose. He was on 18 August 1998 convicted after trial, fined $20,000 and ordered to pay costs of $3,000.

4. Neither the 1st nor the 3rd defendant took any steps to defend the action, save that the 1st defendant appeared in person at the trial. The plaintiff had not obtained judgment on liability in default of defence and since counsel did not take any point on this the trial proceeded as if the 1st defendant had filed a defence. Although the 3rd defendant has not defended, the plaintiff, not having obtained a default judgment, must still prove its case against that defendant.

5. I will first describe the scene of the accident, as it appears from the evidence, the factory inspector's report and the court's own view on a visit. The Lee Wai Building was built in the 1960's, and has on the ground floor three shops, A, B and C, with their shopfronts opening on to the pavement of Nathan Road. There is a scavenger lane at the rear of the building. In the rear of the building there is a light well about twenty feet wide and six feet deep which was originally walled off from the lane to about the ceiling height of the ground floor. This walled area was divided internally by solid walls into three back yards measuring 9 feet 6 inches by 10 feet, one for each shop; I will call them Yards A, B and C. Shop C and Flat CM run right through to the rear of the building. Flat C1 has windows looking out on to the lane and sideways into the light well as well as a small bathroom window looking out towards the lane from the inner corner of the light well.

6. At the date of the accident there was a sloping canopy made of corrugated asbestos covered with cement screeding, covering the whole of the light well with its upper and inner edge about 18 inches below the level of the windows of Flat C1 and about 20 feet above ground level. The walls of Yard C had been built up to about the height of the ceiling of the mezzanine floor, some 16 feet above ground level. The vertically extended yard space was covered over about 3-4 feet below the upper canopy at the building wall, either with burglar-bars, or with another canopy of similar construction to the upper one, or with a flat cement platform; this is a matter of dispute. It is not known when or by whom these structures were built but whatever they were, there is no dispute that they were unauthorised. Since the accident the 2nd defendant has had the walls of the Yard C rebuilt, up to about the height of the mezzanine ceiling and the whole roofed over with a grille and metal sheeting so as to form, in effect, a high-ceilinged room.

7. On 31 May 2001 the court visited the scene for a view, and I observed the structure just described over Yard C. The upper canopy remains in place over Yards A and B but over Yard C it has been cut away. Over Yard B there is another sloping canopy, about 3-4 feet below the upper one and apparently made of corrugated material with screeding on top. However the rear wall of the Yard B has not been extended upwards; it remains at what was presumably the original height of 8 feet or so. It was not possible to see what, if anything, covers it. The plaintiff said that the platform through which he fell was flat and was not an extension of, nor at the same height as this lower canopy over Yard B.

8. For the purpose of his works in Flat C1 the 1st defendant had had scaffolding erected in the lane, along the back of the building and across the light well, and he used this scaffolding to put a new window frame in the window of Flat C1 over the lane. He also put new frames in the window facing into the light well as well as the bathroom window. However, there was no scaffolding in the light well and he says that he and his workers stood on planks on the upper canopy when doing this work.

9. The plaintiff was contracted inter alia to plumb in a new lavatory, wash basin and floor drain in the bathroom of Flat C1. He had knocked holes through the outside wall for the soil and water drain pipes and had installed pipes on the outside wall below the upper canopy which he was connecting to the common pipes, when the structure supporting him gave way and he fell to the floor of the yard of Shop C.

10. It is necessary first to resolve the dispute of fact as to what the structure was which gave way under the plaintiff, allowing him to fall. He says that it was a flat concrete platform to which he gained access by going out of the rear window of Flat C1, along the scaffolding and through the gap between it and the upper canopy. It was not an extension of the lower canopy remaining over the yard of Shop B. However, in his declaration to the factory inspector, Mr Ip, he said that he had got down on to the lower platform through the large hole in the upper canopy, which may be seen in the photographs included in Mr Ip's report.

11. The 1st defendant says that there was indeed a lower canopy or platform. He did not know what it was made of but it was covered with cement screeding. He had taken the plaintiff to the site on about 1 October 1997, and they had climbed out of the side window of Flat C1 on to the upper canopy. At that time the big hole in the corner of the upper canopy was there and the lower structure could be seen through it. However, access to the space between the upper canopy and the lower structure was not possible from the scaffolding, because the space was blocked with vertical bars. In fact, according to him, the plaintiff should not have gone into this space; he should have fed the new lavatory soil pipe and floor drain pipe in through the vertical bars as far as the holes made for them in the rear wall, and should then have connected them vertically to sewage pipes on the wall in the back lane.

12. Mr Lam Yik Him, the manager of the 2nd defendant, says that he saw the premises earlier in 1997 when a related company, of which he is a director, negotiated to buy Shop C and Flat CM. Completion took place on 11 June 1997 with the 2nd defendant as purchaser. There was a sitting tenant, namely City Chain Co. Ltd whose tenancy expired on 10 October 1997. He also saw the premises on that date when his company took over possession from the tenant. He said that on looking up in the yard space, he could see metal bars and a canopy above him, but it was very dark; the only light came from a small amber bulb at the door to the yard. The burglar bars were in the form of a horizontal grille running up the wall and enclosing the entire area of the yard space. They were very rusty and indeed the enclosed yard space was in a complete mess. He had tried to get the management office to remove the canopy but to no avail so he told his contractor, Mr Ho Yau to take the whole thing down; this was done, and the new structure built.

13. Mr Ho's evidence is that there was no lower platform or canopy at all. There was a metal burglar-bar cage extending up the walls and over the top of the yard space but well below the upper canopy level. There were vertical burglar-bars between the top of the wall and the bottom of the upper canopy. His description in the declaration to Mr Ip Chi Kong, who inspected the scene, seems rather equivocal; it could be read as meaning that there was a metal rack with a canopy on or immediately above it, or as being consistent with the description he gave in evidence.

14. Mr Ip, the Occupational Safety Officer of the Labour Department who made a report in respect of the plaintiff's accident, concluded from what the plaintiff and Mr Ho told him, as well as from his inspection of the debris left at the scene after the accident, that there had been such a lower platform, though it is rather difficult to see from his photographs that there was enough debris on the yard floor to have come from a 10 feet by 6 feet corrugated platform covered with screeding. The photographs show what are apparently displaced horizontal burglar-bars. They do not show any vertical bars between the top of the rear wall and the underside of the upper canopy; all that can be seen is a horizontal support beam of two parallel tubes with diagonal tubes between them, which does not take up the whole vertical space. They do, however, show what appears to be the remains of some sort of horizontal corrugated structure attached both to the building wall and the yard wall.

15. Mr Ho is not entirely an independent witness, for he, it appears, gets a lot of work from the 1st defendant's related companies and has known Mr Lam's father for many years. Suggestions made in his statement, which he adopted, that the plaintiff must have been working with his body coming down through the hole in the upper canopy are fanciful; that would need a plumber who was also a circus acrobat. Mr Lam does not help very much; he was looking up from within, in very poor light and could not tell in any detail what was above him, but it does appear that, if it was indeed very dark, there must have been a solid canopy covering the vertically extended yard walls. If there had simply been horizontal burglar-bars at the top of the walls, with vertical bars between the back wall and the upper canopy, light would have come in through those bars.

16. The plaintiff and the 1st defendant agree that there was a solid cement-covered platform, seen from above. They were consistent as between their evidence and what they told Mr Ip and indeed what they told the magistrate in the 1st defendant's trial. Where there is a dispute between them and Mr Ho on this point I prefer their evidence.

17. I am satisfied on the balance of probabilities that at the time of the accident there was a lower canopy or platform - I will simply refer to it as a platform - at the top of the vertically extended yard space, with horizontal burglar-bars beneath it. It was 3-4 feet below the upper canopy. As to the vertical bars at the rear wall, I do not believe either Mr Ho or the 1st defendant about the existence of these. However, whether they were there or not is of little importance because the plaintiff could have got down through the hole in the upper canopy, as indeed he said he originally told both the inspector and the magistrate he had done. In fact he probably did this at least some of the time, because to do so would have been easier than climbing in from the scaffolding past the horizontal support beam. In any event he got on to this lower platform; it supported his weight for some hours while he worked on the pipes on the outside wall, but then it gave way so that he fell to the ground.

18. The plaintiff alleges against the all defendants negligence and breach of the common duty of care under the Occupier's Liability Ordinance, Cap.314. He also alleges against the 1st defendant breaches of statutory duty under Construction Site (Safety) Regulations, Cap.59 sub.leg. I propose first to deal with the liability of the 1st defendant for negligence and breach of statutory duty.

19. There is no dispute that the plaintiff and the 1st defendant together inspected the work site from the scaffolding in the rear lane. From there, the rear wall and the pipes on it would have been visible; light would get in through the hole in the upper canopy, and from the rear lane. The 1st defendant would have been able to see the place at which the plaintiff would have to work. Now, he says that the plaintiff did not need to work there; he was originally expected to put in long pipes to the wall from the scaffolding; he did not put that to the plaintiff in cross-examination, though that is perhaps not of great significance given that he was acting in person; more important is the fact that there is nothing to that effect in his original witness statement, or in what he declared to Mr Ip. I take it, therefore, that it is a recent fabrication. So he knew that the plaintiff would have to get into the space between the upper canopy and the lower platform, and work while squatting, sitting or kneeling on the latter. There was no other way to do the job. He could see that the lower platform had a cement surface but he could not know what was beneath it and supporting it; and he took no steps to find out.

20. The 1st defendant as main contractor, i.e. the person responsible for the construction site at Flat C1, had various statutory duties under the Construction Sites (Safety) Regulations. The plaintiff alleges various breaches. In particular, he alleges a breach of the duties under Regulations 38A(1) which provides that the person responsible for a construction site shall ensure every place of work on the site shall, so far as reasonably practicable, be made and kept safe for any person working there. He also alleges a breach of the duty under Regulation 38B to take adequate steps to prevent any person on the site from falling from a height of two meters or more. There are allegations of breach of duty relating to access but I do not think those are appropriate in the light of my findings of fact. The 1st defendant took no step to ascertain whether the lower platform or canopy was a safe place for the plaintiff to work. The duties under Regulations 38A(1) and 38B would necessarily require the main contractor to ascertain whether an existing structure more than two metres high was strong enough to support a person who had to work there, and if it was not, to make it so or provide some other kind of platform. Obviously, in the circumstances of this case, a scaffold could not have been provided so long as the lower platform or canopy was in place, but if its condition had been ascertained, and if it had been known that Mr Ho was to demolish it, once it had been demolished a proper scaffold could have been provided. So I have no doubt that the 1st defendant was in breach of his statutory duties under Regulations 38A(1) and 38B.

21. The 1st defendant argues that the plaintiff was an independent contractor. This is no defence to a claim in tort for breach of the statutory duties imposed by the Constructions Sites (Safety) Regulations. See Rainfield Design & Associates Ltd v. Siu Chi Moon [2000] HKLRD 226 (CFA). There may be cases where a main contractor can escape liability by contracting out or reliance on a sub-contractor's particular expertise but that does not apply here. Rainfield only deals with breach of statutory duty and leaves open the question of whether at common law the 1st defendant could rely on the fact that the plaintiff was an independent contractor. In any event I do not think it is necessary to consider this here since breach of the statutory liability is established.

22. I turn to the question of liability for negligence and breach of the common duty of care which is alleged against all the defendants. Section 3(1) of the Ordinance provides that an occupier owes a "common duty of care" to visitors. Section 3(2) defines that duty as "a duty to take such care as in all the circumstances of the case 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". So the first question is whether the defendants or any of them were occupiers of the lower platform and the second question is whether the plaintiff was a lawful visitor to it.

23. "Occupier" is not defined in the Ordinance. A useful explanation of its meaning was given by Lord Denning in Wheat v. Lacon 1966 AC 552 at 577 and 558:

"In the Occupier's Liability Act, 1957, the word 'occupier' is used in the same sense as it was used in the common law cases on occupiers; liability for dangerous premises. It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises ...

Translating this general principle into its particular application to dangerous premises, it becomes simply this: wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an 'occupier' and the person coming lawfully there is his 'visitor'; and the 'occupier' is under a duty to his 'visitor' to use reasonable care. In order to be an 'occupier' it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be 'occupiers'. And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from the other.

In SALMOND on TORTS (14th Edn., 1965) p.372, it is said that an 'occupier' is 'he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons'. This definition was adopted by Roxburgh, J., in Hartwell v. Grayson Rollo and Clover Docks, Ltd, and by Diplock, L.J., in the present case. There is no doubt that a person who fulfils that test is an 'occupier'. He is the person who says 'come in'; but I think that that test is too narrow by far. There are other people who are 'occupiers', even though they do not say 'come in'. If a person has any degree of control over the state of the premises it is enough."

24. Lord Denning went on to examine the cases relating to the landlord who lets premises but retains no control, the landlord who lets flats in a building but retains control of the common parts, the owner who licenses premises to another but retains a right of repair, and the owner who employs an independent contractor and to work on his premises.

25. Turning first to the 2nd defendant, it was the owner-occupier. It bought Shop C and Flat CM on 11 June 1997. Along with Shop C, it got Yard C. Some predecessor in title had extended the rear and side walls of Yard C upwards and covered it with burglar-bars and the lower platform. This extension was an unauthorised structure; the area above the original yard walls should have been open. In effect the situation was the same as that where in a low rise building a ground floor flat owner builds a roofed extension, e.g. a kitchen, up to the first floor level. The upper canopy may be disregarded; it had nothing to do with the 2nd defendant, being attached above its property. The 2nd defendant was in the same position as if it had put up the unauthorised structure itself. Through Mr Lam the 2nd defendant knew of the existence of the structure, for he had seen it before he went ahead with the purchase. He also saw it when he regained possession from the tenant on 10 October 1997. The 2nd defendant had de facto possession of the whole of the inside of the structure, for the only way in was through the shop or through the door from the lane. It obviously regarded itself as having ownership and possession of the unauthorised structure for it instructed Mr Ho to demolish the same; and on the 2nd defendant's instructions the structure was rebuilt and re-roofed.

26. Counsel for the 2nd defendant argues that the lower platform was forced upon D2; that may be so but nevertheless I have no doubt that once it took possession of the shop and mezzanine floor it had possession of the whole structure. It would certainly have owed a duty to keep it reasonably safe for any visitor entering into the structure from the ground floor; if the lower platform or the burglar bars had fallen on such a visitor it would surely have been liable for that. I do not see why it would not be liable for someone who entered lawfully on to the roof of the structure, i.e. the lower platform.

27. The 1st defendant was an independent contractor who had been given possession of Flat C1. He was obviously an occupier of Flat C1. He would owe the common duty of care to a visitor, including the plaintiff when working as a subcontractor inside the flat. Once the plaintiff goes outside, though, the position is different. Returning to the low-rise building situation I suggested above, in such a case the first floor owner would not have any automatic right to invite his plumber or other workman to stand on the roof of the ground-floor extension. Nor would the ground floor owner be under any duty to allow the first floor owner's contractor access to his roof. Here the argument is that the plaintiff would derive his right to work on the external wall by reason of an invitation of the owner of Flat C1, through the 1st defendant, because the owner would have the right to drainage and the drains were on the external wall. That may be so but I do not see that the owner of Flat C1 would have any right to invite anyone on to the lower platform which had nothing to do with him. If the 1st defendant had actually taken possession of the lower platform, as he did of the upper canopy when he put in the windows, no doubt he could be liable as occupier of it; but there is no evidence that he ever actually took possession. I do not think that simply telling the plaintiff to get on to the lower platform would make him liable as occupier. Liability could arise in other ways, as I have found it did by reason of his statutory duties but the 1st defendant simply did not have a sufficient degree of control over the platform to make him liable as occupier.

28. The 3rd defendant is and was the owners' incorporation of the building. It is argued for the plaintiff that as such it is the owner, and therefore the primary occupier, of the external walls and responsible for their maintenance. That would include anything attached thereto including both the upper canopy and the lower platform.

29. Section 18 (1) of the Building Management Ordinance, Cap.344 provides that the owners' corporation shall "maintain the common parts and the property of the corporation in a state of good and serviceable repair and clean condition". In section 2 of the Building Management Ordinance, "common parts" are defined as :

"... the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and

unless so specified or designated, those parts specified in the First Schedule"

30. Paragraph 1 of the First Schedule includes external walls.

31. By Clause 2 of the Deed of Mutual Covenant dated 10 August 1962, the First Owner granted to the Vendor the "full right and privilege to hold use occupy and enjoy to the exclusion of First Owner the premises set out in the Second Part of the Second Schedule hereto to the intent that the Vendors shall have in all respect the rights of an absolute owner thereof". Part two of the Second Schedule reads :

"All those self-contained shops and offices and apartments comprised in the said Building other than [what was conveyed to the First Owner] together with the exterior walls and the roof of such building."

32. However all units in the building, consisting of 46 shops or flats and the roof were subsequently sold by the original developer, as appears from the land searches produced. These together make up the 47 undivided shares conveyed. Therefore, says the plaintiff, the original vendor must now have conveyed away, along with the other 46 shops or flats and the roof, its right to exclusive use, occupation or enjoyment of the external walls.

33. Counsel for the 2nd defendant argues that the land search records do not establish that the exterior walls are common parts. The fact that no undivided shares have been allocated to the exterior walls is neither here nor there; see Jumbo King Ltd v. Faithful Properties Ltd [1999] 4 HKC 707. However in that case, at page 720C Litton PJ explained the position as follows :

"As mentioned earlier, the proprietary right of a co-owner in a multi-storied building is the right to an undivided share in the land and building; prima facie the owner is entitled to exert rights of possession to every part of the building, in common with his co-owners. This is what is meant by the expression 'unity of possession'. But by the deed of assignment and by the DMC the rights of exclusive possession to individual parts are marked out as between the co-owners."

34. It seems to me that it must follow that once the developer divests itself, as here, of its proprietary rights to all of the undivided shares, there is nothing from which it can derive a right of exclusive possession to any part. Therefore, the external walls can no longer be taken as specified or designated for the exclusive use, occupation or enjoyment of an owner, and the owners' incorporation must be responsible for them as common parts. In any event Clause 5(b) places a duty on all the owners to maintain the common parts.

35. In effect then the 3rd defendant is the owner-occupier of the common parts of the building including the external walls. Anything which is attached to the external walls, such as a canopy or the roof of an outbuilding would become annexed to them and fall into the ownership of the 3rd defendant. Therefore, says the plaintiff, the 3rd defendant would owe the common duty of care to a lawful visitor to the lower platform. See also Chu Wo Heung and Anor v. Hui Lai Wa & Ors CACV1715/2001, 15 March 2002. That was a case where a canopy attached to a building collapsed; the building manager was held to have had responsibility for the maintenance of the canopy, as coming within the common parts.

36. This is of course all very well but the lower platform did not collapse on passers-by underneath, or on an lawful visitor inside the Yard C structure. It was in a dilapidated condition; the 2nd defendant knew that and had complained to the 3rd defendant of it, to try to get the 3rd defendant to deal with it. But there is no evidence to suggest that it fell because of anything other than the plaintiff's weight placed upon it. The question remains whether, in going on it, he went there as a lawful visitor, vis-à-vis the 3rd defendant. "Visitor" encompasses the old common law categories of "invitee" and "licensee". There was no contact between the plaintiff or the 1st and 3rd defendants so he was not the 3rd defendant's invitee. If he was invited at all it could only have been as an implied invitation by the owner of Flat C1, through the 1st defendant. To make him the 3rd defendant's visitor, it would be necessary to find that the latter expressly or impliedly licensed the plaintiff to go on to the lower platform. Now I would have no difficulty if this if the platform were some common part of the building to which persons would normally have access, such as the usual kind of Hong Kong roof to which all the owners in the building may have access. Their workmen must be taken as licensed to go there by the owners' corporation. That is not the position here. The lower canopy was an outbuilding roof, with no means of access. It was not the sort of roof on which persons could be expected to walk. I do not how the 3rd defendant could be taken as having licensed the plaintiff to go there. This would necessarily mean that any flat owner in a multi-storey building can tell a workman to go on to any common part of the building, whether made for access or not, and the workman then becomes a lawful visitor vis-à-vis the owners' corporation which is expected to take reasonable care for his safety; i.e. keep every outbuilding roof, canopy or whatever, not just safe so that it does not fall on those below, but safe so that people can walk on it, even if it was never built for that purpose. That cannot be right.

37. The plaintiff says that he was a visitor, having been expressly invited to use the platform by the 1st defendant. For the reasons I have set out above, I do not think that can be right. The 2nd defendant says that the plaintiff was a trespasser, i.e. "one who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known is practically objected to" - per Lord Dunedin in Robert Addie & Sons (Collieries) Ltd v. Dumbreck [1929] AC 358 at 371. It seems to me that this is the position so far as the 2nd defendant and indeed the 3rd defendant are concerned. The plaintiff was there without any invitation from either of them, and completely unknown to them, on a structure not made for access and on which neither of them should have been expected to foresee that someone would go.

38. In British Railways Board v. Herrington [1972] AC 877, [1972] 1 All ER 749 the House of Lords reconsidered the decision in Addie v. Dumbreck. The effect of the decision was that it became possible for a plaintiff, even though he was a trespasser, to recover in negligence. The precise nature of the duty owed to a trespasser gave rise to controversy and in 1984 statutory provision was made for the liability of an occupier to a trespasser in the United Kingdom. There was no corresponding Hong Kong statute. The law applicable in Hong Kong is that set out in BRB v. Herrington. For the purposes of this judgment it is sufficient to refer to some of the passages in the opinions of the Law Lords in that case.

Per Lord Reid at 899 :

"So the question whether an occupier is liable in respect of an accident to a trespasser on his land would depend on whether a conscientious humane man with his knowledge, skill and resources could reasonably have been expected to have done or refrained from doing before the accident something which would have avoided it. If he knew before the accident that there was a substantial probability that trespassers would come I think that most people would regard as culpable failure to give a thought to their safety."

Per Lord Morris of Borth-y-Gest at 909 :

"... An occupier owes no duty to make his land fit for trespassers to trespass in. ... [but there is] a duty which, while not amounting to the duty of care which an occupier owes to a visitor, would be a duty to take such steps as common sense or common humanity would dictate."

Per Lord Pearson at 929 :

"It seems to me that the rule in Addie's case has been rendered obsolete by changes in physical and social conditions and has become an incumbrance impeding the proper development of the law."

Earlier Lord Pearson said at 922 :

"... [the occupier of premises] ... does not owe to the trespasser a duty to take such care as in all the circumstances of the case is reasonable to see that the trespasser will be reasonably safe in using the premises for the purposes for which he is trespassing ... It does not follow that the occupier never owes any duty to the trespasser. If the presence of the trespasser is known to or reasonably to be anticipated by the occupier, then the occupier has a duty to the trespasser, but it is a lower and less onerous duty than the one which the occupier owes to a lawful visitor. Very broadly stated, it is a duty to treat the trespasser with ordinary humanity."

Per Lord Diplock at 941 :

"The duty [to the trespasser] does not arise until the occupier has actual knowledge either of the presence of the trespasser upon his land or facts which make it likely that the trespasser will come on to his land; and has also actual knowledge of facts as to the condition of his land or of activities carried out upon it which are likely to cause personal injury to a trespasser who is unaware of the danger. ... Once the occupier has actual knowledge of such facts, his own failure to appreciate the likelihood of the trespasser's presence or the risk to him involved, does not absolve the occupier from his duty to the trespasser if a reasonable man possessed of the actual knowledge of the occupier would recognise that likelihood and that risk."

39. The result is that for the 2nd or 3rd plaintiff to become liable it would have to know that the condition of platform was such that it would be dangerous to a trespasser who went on to it and it would have to know or expect that someone would go on to it.

40. The plaintiff then says that the platform was analogous to a trap. It was like the disused scaffold in the case of Ta Xuong v. Incorporated Owners of Sun Hing Building [1997] 4 HKC 171; in the words of Seagroatt J both an invitation to burglars and "an open invitation to anyone required to do any work on the exterior of the building to use it and rely upon it as a means of access and support". In other words, the 2nd and 3rd defendants could expect from the nature of the lower platform that anyone required to work on the exterior of the building would use it for access and support.

41. This is an attractive argument, but I do not see that that can be right either. A scaffold is built for the purpose of climbing. If one leaves a scaffold up it is reasonable to expect that someone will use it for the purpose for which it was originally erected. An outbuilding roof is different. It is not made for climbing on, even though it might look safe enough. If this argument is right it means that anyone who puts up a roofed extension at the back of his ground floor flat must expect trespassers on the roof and build it to be load-bearing. I think this is putting the duty too high.

42. It is also argued that the 2nd defendant's contractor Mr Ho must have known that work was being done in the upstairs flat, because of the noise; the plaintiff knocked a hole through the back wall. That is no doubt right but I do not see that it would have produced any knowledge that whoever was making the noise upstairs would necessarily go out on to the platform.

43. I conclude that the neither the 2nd nor the 3rd defendant can be liable to the plaintiff for this accident. Only the 1st defendant is liable, for breach of statutory duty. In effect where he was at fault was in not ascertaining that the lower platform was safe to work on. In fact the position is really little different from what it would have been if I had found that the situation was as described by Mr Ho, and there had only been burglar bars, not covered with any platform, to support the plaintiff. The 1st defendant would still have been liable for breach of statutory duty but the other defendants' arguments on liability would still have succeeded, though probably more easily.

Contributory Negligence

44. The question of contributory negligence on the part of the plaintiff arises. It is argued that the decision to that he should work on the platform was thrust on him by the 1st defendant, but in fact he was an independent contractor and he could himself have gone down to the ground floor flat to make inquiries about the safety of the platform before he went on it, just as easily as could the 1st defendant. No doubt the platform looked safe enough from above, as it had a cement surface; but no one could know what was holding the surface up. Further it would no doubt have been easy enough for the plaintiff to rig a safety harness using an anchor point above the hole in the upper canopy, with the line coming down through the hole. It seems to me that in the circumstances the plaintiff was negligent of his own safety and his contributory negligence should be put at 50%.

Quantum

45. The plaintiff, who was aged 46, suffered a compound fracture of the left tibia. Treatment included five operations, but recovery was delayed due to non-union and complications arising out of infection. Because of the delayed fracture union he was offered, but refused a further operation to insert an intramedullary nail in the tibia and apply a bone graft and opted for further application of a plaster cast. He was on sick leave until 14 September 1999 though his expert recommended that he should have sick leave for three years from the date of the accident. He now suffers from shortening of the left leg by 1.7 cm. and varus deformity; muscle wasting of the left thigh, indicating weakness of or disuse of the left leg and/or favouring of it. He has scarring at the site of the accident on the inner aspect of the left lower leg and scarring on the thigh at a skin graft donor site. He complains of abnormal sensation and numbness at the fracture site; a feeling of pulling at the lower left leg; and inability to climb ladders properly or squat symmetrically.

46. Evidence was heard from the treating surgeon, Dr Choi Siu Tong and from two orthopaedic experts, Dr Richard Lau Man Tsang for the plaintiff and Dr Lau Hoi Kuen for the 2nd defendant. The plaintiff's expert says that he has a 20% impairment of the lower limb or 8% impairment of the whole person. He estimates a 10% loss of earning capacity on the basis that the plaintiff could not work for one day in ten because of the disability. The 2nd defendant's expert (in a later report) puts the loss of earning capacity at 5%. Both agree that as at July 2001 he was able to resume his pre-accident employment.

47. The experts are not far apart in their evidence of the plaintiff's present condition. They and the court have seen a private investigator's videotape of the defendant walking and working. When he squats, he does not squat symmetrically; he keeps his left heel up or he kneels on the left knee. When he walks, he has a very slight limp, visible to the doctors. But he does not appear to have any difficulty in walking or in working for long periods.

48. The main dispute relates to whether the plaintiff was unreasonable in refusing the further operation to insert an intramedullary nail in the tibia with bone graft. It is not in dispute that such an operation would have had a 90% chance of success, and that if successful it would have removed the mal-alignment and varus deformity though it would not have helped the shortening. Dr Richard Lau takes the view that the acceptance of such an operation is a matter for the patient and that he should not be penalised for refusing it. Dr Lau Hoi Kuen however says that he should be responsible for at least half of the present degree of permanent impairment and loss of earning capacity.

49. If an injured plaintiff refuses to undergo recommended treatment, the burden of proof lies on him to prove that in all the circumstances he acted reasonably and whether or not he did so is a question of fact; Selvanayagam v. University of the West Indies, [1983] 1 WLR 585. As I said at the trial I have a lot of sympathy for the plaintiff's refusal to undergo further surgery. He knew that his leg would not be bent, if he had the operation. However he obviously felt that he did not want to have his leg "sawn open". He was alive to the risk of infection. Dr Choi, who treated him, says that he explained the "pros and cons". He recommended surgery, but he does not seem, from his evidence, to have recommended it particularly strongly; nor did he give an indication of a high percentage probability of success. Now he says that as a layman he would agree with the plaintiff's decision to have conservative treatment.

50. I do not think the situation here can be equated to that in Marcroft v. Scruttons Ltd [1954] 1 Ll.L.R.395 where the plaintiff purely for subjective reasons refused electric shock treatment, or that in McAuley v. London Transport Executive, [1957] 2 Ll.L.R.500 where the plaintiff refused surgery for no very explicable reason. It seems that this defendant was given two choices, but although one was recommended it was not the obvious choice especially given the possibility of infection; the plaintiff had already suffered from infection and it was not unreasonable for him to take the choice that he did, knowing that he would run a further risk of infection. I do not think that there should be any reduction for the plaintiff's refusal to undergo this surgery.

PSLA

51. The plaintiff says that the injury is in the "serious injury" category and that an appropriate award is $450,000.00. The 2nd defendant says that is too high and refers to Yu Kok Wing v. Lee Tim Loi [2000] 2 HKLRD 306 where an award of $350,000.00 was made for what appear to me to be rather more serious leg injuries. I think an award of $350,000.00 is appropriate here. I will apply the 50% discount for contributory negligence to this and other figures at the end.

Pre-trial loss of earnings

52. It is agreed at any rate between the plaintiff and the 2nd defendant that the plaintiff was earning an average of $16,100.00 per month before the accident which was 55 months and six days before the trial. This is based on employment for 17 days per month at $800 per day, i.e. $13,600.00 p.m. plus contract work of $30,000 p.a. The plaintiff says that he started work again in June or July 2000. He now only earns $1,800.00 per month, at $300.00 per day for odd job work six days a month. He could get $800 per day as a plumber but he cannot get this work because of residual disability; in particular he is no longer able to climb ladders. I have some difficulty with this. Both experts say that he is fit to resume work as a plumber and electrician and could climb ladders or scaffolds though there would be some extra risk. However such workmen do not always work at height. Further he admitted that his employer, Wong Keung, could not secure any work this year, and that he himself could not get independent work because of the economic downturn. It is argued that he probably could not now make as much as he made before the accident; the work is not available. That seems to be probably right.

53. This is all rather indefinite but I think it must be accepted on the basis of what both experts say that the plaintiff could have worked at his former job if work had been available from at least July 2001, even if he lost, say, 10% of previous income because of inability to do certain work. That he cannot get plumbing work now seems from his own evidence to be largely the fault of the economic downturn and unemployment caused thereby. It is difficult to see why a defendant should pay for that. In this connection Cutler v. Vauxhall Motors Ltd [1970] 2 WLR 961 and Rouse v. Port of London Authority [1953] 2 Lloyd's Rep.179 are relevant.

54. I take into account Dr Richard Lau's recommendation that the plaintiff should have sick leave for three years, i.e. up to October 2000, and both specialists' view that he could resume plumbing work in their later reports, around mid-2001. In fact the plaintiff started work again in June or July 2000. I will allow the full loss of earnings for the period up to 23 June 2000, i.e. for 32 months. From that date until 23 June 2001 i.e. for 12 months I will assume that he was able to earn $1,800.00 per month. From then and from then until the date of trial, 29 May 2001, I will assume that had the work been available, though it was not, he could have earned 90% of his pre-accident actual monthly earnings in employment, with no contract work, or $12,240.00 per month and make the award on the basis that the unavailability of work was not the fault of the 1st defendant. His pre-trial loss of earnings will therefore be :

Loss over 55 months and 6 days at $16,100.00		$886,103.00
Less :
12 months' earnings at $1,800.00	$21,600.00
11 months and 6 days' earnings at $12,240.00	$137,009.00
Subtotal	$158,609.00
Total pre-trial loss of earnings		$727,494.00

55. Medical and travelling expenses are agreed at $4,896.00 and $610.00 respectively. The total of pre-trial special damages is $727,494.00 + $4,896.00 + $610.00 = $733,000.00.

Future Loss

56. Counsel has worked this out on the basis that the plaintiff can earn a median between $1,800.00 per month and the sort of money a car park attendant or the like could earn, i.e. $6,000.00 per month. I do not understand the basis of this. Both medical specialists agree that he can resume his pre-accident work. On the basis that he could obtain $12,240.00 per month as such the multiplicand will be $3,860.00. I accept the suggested multiplier of eight years. The post-trial loss will be $3,860.00 x 8 x 12 = $370,560.00.

Loss of Earning Capacity

57. There is really no evidence that the plaintiff is at risk of losing the work as a plumber, which he can now do, notionally at any rate, if there is work to be had in the market. I do not see that there can be any award for this.

Total Award

PSLA	$350,000.00
Pre-trial special damages	$733,000.00
Total	$1,453,560.00
Adjusted by 50% for contributory negligence	$726,780.00
Interest on PSLA at 2% from date of Writ (say 22 months at 2%)	$6,416.00
Interest on Special damages at half judgment rate from date of accident (say 56 months)	$69,610.00
Grand Total	$802,806.00

Costs

58. The plaintiff only succeeds against the 1st defendant, and is entitled to costs against him. The 2nd defendant is entitled to its costs against the plaintiff. The 3rd defendant, having taken no part in the action, though ultimately the claims against it are dismissed, is not entitled to any costs.

Result

59. There will be judgment for the plaintiff against the 1st defendant in the sum of $802,806.00 with interest at the judgment rate until payment and costs to be taxed if not agreed. The plaintiff's claim against the 2nd defendant is dismissed with costs to be taxed if not agreed. The plaintiff's claim against the 3rd defendant is dismissed with no order as to costs. The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations. All costs orders are nisi.