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

CACV 16/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 16 OF 2000

(ON APPEAL FROM HCPI NO. 786 OF 1998)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. The claim to which this appeal relates arose out of a fatal accident. The action was brought by the widow of the deceased, and she sued as the administratix of her late husband's estate. The action was tried by Deputy Judge To in the Court of First Instance. He found that the Defendant had been in breach of the duty of care which it had owed to the deceased, but he also found that the deceased had negligently contributed to the accident. He assessed the deceased's contributory negligence at 75%. The Defendant now appeals.

The facts

2. There is no challenge to the facts found by the judge. For some time in the past, the deceased had worked for a company which had been responsible for maintaining the plumbing and electrical installations in Yuen Fat Building. At all relevant times, the Defendant had been responsible for the management of the building. In January 1990, the company had been instructed by the Defendant to upgrade the plumbing system and to install an additional salt water tank and three water pumps. The deceased had designed the new system and had been responsible for its installation. Some time later, the deceased had left the company and started up his own business. It was in that capacity that he had been retained by the Defendant to maintain the system which he had designed and installed.

3. The additional water tank had been installed in the pump room of the building. Its cover was made of fibre glass. Mounted on the cover was a water level control switch which operated the water pumps. That control switch was connected by wiring to the switch box and control panels which were mounted on the wall above the tank. On at least some of those occasions in the past when the deceased had had to gain access to the switch box and the control panels, he had placed a wooden plank on the cover of the water tank to provide support.

4. On the evening of 5 August 1995, the deceased had been summoned by the management of the building to effect various repairs to the system. He collected the key to the pump room. He was not seen alive again. The following day he was found in the pump room. The fibre glass cover had collapsed and was submerged in the water tank, along with the water level control switch and the connecting wiring. The deceased was found to have been electrocuted. The judge found that what must have happened was that, since the wooden plank was not in the pump room that night, the deceased had stood on the top of the fibre glass cover without support to gain access to the switch box or the control panels. The cover had collapsed, and as a result the deceased had come into contact with the water in the tank. That water had become charged by the wiring connecting the water level control switch to the switch box and the control panels.

5. On these facts, four questions arose:

(i) What was the nature and degree of the duty of care which the Defendant owed to the deceased?

(ii) Had the Defendant discharged that duty of care?

(iii) If not, had there been a causal link between that failure to discharge the duty of care and the electrocution of the deceased?

(iv) If so, to what extent, if any, had the deceased negligently contributed to his death?

It is necessary to consider each of these questions separately, though the evidence relating to each of them overlaps to a considerable extent.

The duty of care owed by the Defendant

6. Two causes of action were pleaded on behalf of the Plaintiff: negligence and breach of the common law duty of care owed by the Defendant as the occupier of the building. These two causes of action overlapped and merged with each other, and the ultimate question which the judge had to decide was whether the Defendant had failed to discharge the common duty of care owed by the Defendant to the deceased pursuant to the Occupiers Liability Ordinance (Cap. 314) ("the Ordinance"). That duty is described in section 3(2) 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."

Those circumstances include the type of visitor who is permitted to be there. Thus, section 3(3) of the Ordinance provides:

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

(a) ........................; and

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

The thinking behind an identical provision in the English Occupiers' Liability Act 1957 (on which section 3(3) was modelled) has been explained in Clerk & Lindsell on Torts, 17th ed., para. 10-37 as follows:

"A window-cleaner's job, for instance, is inherently dangerous, and it would be wrong to expect an occupier to make sure that hand-holds and the like are able to bear his weight: on the other hand, were a window-cleaner to trip on a defective staircase, there is no reason why the occupier should not be liable."

7. The judge found that section 3(3)(b) had no application to the present case. He said:

"The deceased was a plumber and electrician. He certainly exposed himself to risks of injury working with electricity, switches and wires, etc., but not to other risks, such as working at height, or as in the present case, working over a water tank with inadequate support .... [H]e fell into the water tank because of failure of support. I find that the risk which resulted in his death was not a risk 'ordinarily incident' to his calling as an electrician and plumber."

We do not quarrel with that view, but it must not be overlooked that section 3(3)(b) is expressly described as an example. It is simply one of the circumstances which might affect the degree of care owed to a particular visitor. There will inevitably be other circumstances in which the degree of care owed to a particular visitor might be affected. In our view, the present case is an illustration of that. To adapt the language of section 3(3)(b) to meet the facts of this case, an occupier may expect that a person who had designed and been responsible for the installation of an electrical and plumbing system would appreciate and guard against any special risks ordinarily incident to its maintenance or repair.

8. The judge recognised that "the dangerous state in the pump room" had been "created by the deceased's own negligent design". He added:

"In my judgment, the fact that the deceased was the creator of the dangerous state is of relevance in considering contributory negligence but does not relieve the occupier of its common duty of care in seeing that the premises were reasonably safe to its visitors, including the deceased himself. Once the dangerous state is created, the law imposes on the defendant as occupier of the dangerous premises the common duty of care. That duty is owed to any visitor as it was to the deceased who created the danger."

We agree, but what the judge failed to do, we think, was to recognise that the degree of care which the Defendant owed to the deceased was affected by the fact that he had designed and been responsible for the installation of the system. In other words, although the judge correctly held that the Defendant owed a duty of care to the deceased as its visitor, the duty of care which the Defendant owed to the deceased when he attempted to repair the system was less onerous than the duty of care which the Defendant would have owed to other visitors who might have had occasion to access the switch box and control panels above the water tank.

The discharge of the duty of care

9. Section 3(4) of the Ordinance provides:

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

(a) ...............; and

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

The judge found that there had been a danger of the kind referred to in section 3(4)(b). His finding was as follows:

"It is obvious as the photographs of the pump room show that in order to access the control panels or switch box for service, one has to stand on top of the cover of the fibre glass tank. As the accident shows, it was unsafe to do so and that the fibre glass cover was not suitable to stand on..... I have no difficulties to conclude that the design of the plumbing system was negligent and that rendered the pump room a potential danger."

Rightly, there is no appeal from that finding. The construction of the system was faulty in that either the switch box and control panels` should have been mounted on a wall which enabled access to be gained to them otherwise than by standing on the cover of the water tank, or the cover of the water tank should have consisted of a material which was not prone to collapse if someone stood on it.

10. What, then, was the impact of section 3(4) on whether the Defendant had, in the circumstances, discharged the common duty of care which it owed to the deceased as its visitor? The effect of section 3(4) was described in Clerk & Lindsell, op. cit., para. 10-60 as follows:

"... where the occupier has (1) acted reasonably in selecting and entrusting work to the independent contractor concerned (2) taken reasonable steps (if possible) to supervise the construction of the work, and (3) used reasonable care to check that the work has been properly done, he will be held to have discharged his common duty of care."

A similar passage in an earlier edition of Clerk & Lindsell was approved by Hunter J (as he then was) in Yeung Kam Fuk v. Len Shing Construction Co. Ltd. [1986] HKC 160. Adopting that approach, the judge decided that the Defendant had acted reasonably in selecting and entrusting the installation of the new system to the company by which the deceased had previously been employed, and that it had not been appropriate for the Defendant to supervise the carrying out of that work. However, the judge held that the Defendant had not taken reasonable care to check that the work had been done properly. His reasoning was as follows:

"In order to access the switch box and control panels, one would have to stand on the fibre glass cover. It does not need an expert to foresee that such a cover was not suitable to stand on and should it collapse with someone standing on it, that person would risk electrocution. That danger is obvious, even to the untrained eye. If the defendant had given any thought to the installation when it was completed, it would have readily concluded that it was dangerous."

A little later on in his judgment, the judge said:

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

11. We are unable to criticise the thrust of this reasoning. It was open to the judge to conclude that the Defendant should have appreciated that the combination of the location of the switch box and control panels and the material with which the cover of the tank had been constructed was potentially dangerous. In those circumstances, it was open to the judge to conclude that the Defendant had failed to discharge its duty of care to its visitors either

(a) by failing to appreciate that this combination of factors constituted a potential source of danger to anyone who wanted to access the switch box and control panels above the tank, or

(b) if the Defendant had appreciated the potential danger, by failing to cause the danger to be removed, whether by moving the switch box and control panels to a position where they could be accessed safely or by reinforcing the cover of the water tank to prevent its propensity to collapse.

12. As we have said, we recognise that the duty of care which the Defendant owed to the deceased was less onerous than the duty of care which the Defendant owed to other visitors who would have had occasion to access the switch box and control panels in the pump room. But since the deceased had installed a system which the judge found the Defendant should have realised was potentially dangerous, the Defendant either should have realised that the deceased had not appreciated the danger he had created (i.e. that the deceased had in fact been an "unwary visitor" even though he should not have been), or should have recognised that the deceased might have chosen to stand on the cover to access the switch box and control panels without support, despite being aware of the risk of collapse.

13. Ms Cissy Lam for the Defendant (who did not appear below) reminded us of what Lord Goddard CJ said in Bates v. Parker [1953] 2 QB 231 at pp. 235-236:

".... where a householder employs an independent contractor to do work, be it of cleaning or repairing, on his premises, the contractor must satisfy himself as to the safety or condition of that part of the premises on which he is to work. He is left to himself to decide how and in what manner he will perform his task. Whether he is to put his ladder in one place or another, or to shift it or, instead of shifting it, to stretch and endeavour to support himself with his other hand, is a matter for him to decide."

Since it was for the deceased to decide how to access the switch box and the control panels, the fact that he chose a dangerous way to do so is not something for which the Defendant should be responsible. We cannot go along with this argument. This was not simply a case of an independent contractor choosing a dangerous way to carry out the work which he had been engaged to perform. It was a case in which the installation which the deceased had to work on was already potentially dangerous. That danger was something which the Defendant should have taken steps to eliminate.

14. Finally, Ms Lam pointed out that there was no evidence that the Defendant knew that the wooden plank was missing that night. That is true, but it cannot absolve the Defendant from liability for allowing a potentially dangerous situation to continue. If the Defendant was able to rely on the presence on earlier occasions of the wooden plank in the pump room which could be used as support for anyone who stood on the cover of the water tank to access the switch box and the control panels, the Defendant should have put in place a system to ensure that the wooden plank remained in the pump room. We were not told of any evidence that that was what the Defendant had done.

Causation

15. Section 3(4) of the Ordinance would only have been activated if it was the danger due to the faulty construction of the system which had caused the deceased's death. We were told that the judge was not addressed on the issue of causation, and it is therefore understandable that he did not expressly deal with the issue in his judgment. He must therefore be treated as having assumed that the deceased's death had been caused, at least in part, by the faulty construction of the system. The point is taken by Ms Lam that it was not the danger due to the faulty construction of the system which caused the deceased's death, but his failure to use the wooden plank as support as he had done in the past.

16. We cannot go along with this argument. We accept, of course, that if the deceased had used the wooden plank as support, the cover of the water tank would not have collapsed. His failure to use anything as support may therefore be said to be a cause of the deceased's death. But since it was the faulty construction of the system which made the use of some support necessary, it was the faulty construction of the system which was also a cause of the deceased's death. This view of the case accords with principle. In Stapley v. Gypsum Mines Ltd. [1953] AC 663, Lord Reid said at p. 681:

"To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical scientific theory of causation, it is quite irrelevant in this connection .... The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident."

For the reasons we have given, this was one of those cases in which the judge was entitled to take the view that it was proper to regard the deceased and the Defendant as having jointly caused his death.

Contributory negligence

17. Mr Thomas Lai for the Plaintiff (who likewise did not appear below) did not challenge the judge's finding that the deceased's contributory negligence should be assessed at 75%. However, Ms Lam argued that the deceased's contributory negligence should be assessed at 100%, or failing that at a percentage higher than 75%.

18. There is a theoretical difficulty with assessing contributory negligence at 100%. As Clerk & Lindsell, op. cit., puts it at para. 3-09:

".... any finding that the plaintiff's damages should be reduced by 100 per cent must be illogical and irrational as such a result necessarily infers that the plaintiff's fault alone is the effective cause of his injury. The defence of contributory negligence applies where the relevant evidence establishes that the cause of the damage suffered by the plaintiff is the combination of fault on his part and the wrongdoing of the defendant."

On the other hand, in Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 KB 291 at p. 326, Denning LJ (as he then was) said:

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

The words in quotation marks are from section 1(1) of the Law Reform (Contributory Negligence) Act 1945, but the same sentiment is expressed in section 4(1) of the Civil Liability (Contribution) Ordinance (Cap. 377). It is possible, therefore, that Denning LJ thought that even if a defendant's negligence was a cause of the injury sustained by the plaintiff, the plaintiff's blameworthiness could have been so great as to justify a finding that his contributory negligence should be assessed at 100%.

19. We do not think that it is necessary to decide whether contributory negligence can ever be assessed at 100%, because for the reasons we have given we think that it was open to the judge to find that there was some blameworthiness on the part of the Defendant. All that remains, therefore, is whether the judge should have assessed the deceased's contributory negligence at higher than 75%. An appellate court will, of course, be slow to interfere with a trial judge's apportionment of responsibility unless it can be demonstrated that he proceeded on a misapprehension of the facts or on an error of law, or that the apportionment of blame was so manifestly excessive or inadequate that no judge could reasonably have allocated responsibility in the way he did. It is not suggested that, at this stage of the exercise, the judge either misunderstood the facts or proceeded on an erroneous view of the law. And it is, in our opinion, not possible to say that the judge's assessment fell outside the generous ambit within which reasonable disagreement is possible. Accordingly, the judge's view that the deceased's contributory negligence should be assessed at 75% should stand.

Interest on the award

20. One element in the judge's quantification of the Plaintiff's loss is called into question on this appeal. That relates to the interest which the judge awarded on the award for loss of accumulation of wealth. The judge divided that award into two parts: pre-trial and post-trial. For pre-trial loss of accumulation of wealth, the judge awarded interest at half the judgment rate until trial and thereafter at the judgment rate until payment. For post-trial loss of accumulation of wealth, the judge awarded interest at the judgment rate until payment. It is said that these heads of loss should not have attracted interest at all. As was said in Kwan Lai Kuen v. National Insurance Co. Ltd. [1998] 1 HKC 98 at pp. 106I-107A:

"Since (a) interest is awarded for the delayed receipt of damages, and (b) an award for loss of accumulation of wealth has to be discounted to reflect its accelerated receipt, no interest can be awarded on such a head of loss."

For his part, Mr Lai contended that, once the judge had decided to take the admittedly unusual course of distinguishing between pre-trial and post-trial loss of accumulation of wealth (which had not happened in Kwan Lai Kuen), his award of interest was not contrary to principle.

21. It is important to remember what the rationale for an award of loss of accumulation of wealth is. We respectfully agree with the view expressed by Kaplan J in Re Lau Chuen Fat [1994] 2 HKLR 173 at p. 182:

".... what the court has to consider is whether, at the date of death by natural causes, there would have been an accumulation of wealth, the realization of which the tortious death has prevented."

Thus, since one is concerned with the wealth which the deceased would have accumulated by the date of his natural death, it is not appropriate, in our view, to distinguish between pre-trial and post-trial loss. On the assumption that the deceased's natural death would have occurred after the date when judgement in the action was given, no question of any loss which is attributable to the period prior to trial can arise. It may be that some of the savings which the deceased would have made (and which would be taken into account in assessing the award for loss of accumulation of wealth) would have been made prior to trial, but that does not mean that an award which takes those savings into account amounts to a loss incurred prior to trial. It follows that an award for loss of accumulation of wealth should not carry interest in respect of any period prior to trial.

22. Different considerations apply to the post-trial interest on such award as has been made at trial. If interest is not awarded, there will be no effective sanction on a defendant who deliberately delays satisfying the judgment debt insofar as it relates to an award for loss of accumulation of wealth. Moreover, as was said in Kwan Lai Kuen at p. 105B:

"... the wealth which [the deceased] would have accumulated has to be discounted substantially to reflect the accelerated receipt of the wealth which would have accrued to his estate when he eventually died from natural causes."

Accordingly, a discount to reflect the accelerated receipt of the wealth should already have been built into the award. If that has been done, there is no reason why post-trial interest on the award should not be awarded.

23. To be fair to the judge, he was not addressed on the question of interest on the award for loss of accumulation of wealth. He proceeded to award interest on that head of loss without the assistance of counsel. Although the judge does not appear to have taken into account the accelerated receipt of that wealth, the fact is that there is no challenge to the actual award for loss of accumulation of wealth. Accordingly, we propose simply to set aside the award which the judge made for interest in respect of the period prior to judgment, but we confirm his award that the loss of accumulation of wealth in the sum of $231,954.54 should attract interest at the judgment rate from the date of judgment until payment.

Conclusion

24. For these reasons, we dismiss the appeal against the judge's conclusions on liability and contributory negligence, and we allow the appeal only to the limited extent of setting aside the award of interest which the judge made in respect of the loss of accumulation of wealth. We substitute for it an award in the terms which we have indicated. As for costs, the Plaintiff has been so substantially successful in resisting the appeal that the order nisi which we make is that the Defendant should pay to the Plaintiff her costs of the appeal, to be taxed in accordance with the Legal Aid Regulations if not agreed.