CHAN CHIU v. THE PERSONAL REPRESENTATIVE of the estate of CHIN WOON KWONG alias CHIN SZE AND OTHERS

Personal injuries - signboard worker fell while descending scaffolding - suffered spinal injuries - whether unsafe system of work -whether employer and scaffolding contractor negligent - on facts plaintiff failed to establish negligence - Held: 1. Action dismissed; 2. Judgment for 2nd and 3rd defendants.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

H.C. Action No. 4034 of 1985

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JUDGMENT

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1. The plaintiff worked many years installing neon light signboards. On 2nd July 1982 he was working on scaffolding at No. 97 Wuhu Street, Kowloon assisting in replacing an existing signboard outside the premises of the Carnival Watches Company. At about 11.40 a.m. he commenced to climb down the scaffolding intending to go to lunCh. When he was about 15 feet from the ground he fell. As a result of the fall his back was hurt. In fact he suffered a compression fracture of the 2nd lumbar vertebra. The plaintiff has received compensation under the Employees Compensation Ordinance, Cap. 282. He now seeks damages in tort founded on the alleged negligence of the defendants. At the time of the accident the plaintiff was employed by the 1st defendant. The 1st defendant was the sub-contractor of the 2nd defendant. The 2nd defendant had earlier employed the 3rd defendant to erect the scaffolding from which the plaintiff fell. Before these proceedings commenced Mr. Chin Woon Kwong died, hence the action was brought on 1st July 1985 against his personal representative. On 16th November 1985 the plaintiff wholly discontinued the action against the 1st defendant. The action is now only concerned with the liability of the 2nd and 3rd defendants.

2. The statement of claim pleaded that as the plaintiff was walking along scaffolding supplied by the 2nd defendant and constructed by the 3rd defendant, it gave way and the plaintiff fell to the ground. The particulars of negligence pleaded included allegations that the defendants had failed to take any adequate precautions for the safety of the plaintiff while he was working; failed to provide or maintain adequate safety equipment; permitted the plaintiff to use the scaffolding when they ought to have known it was defective; and failed to provide or maintain a safe and proper system or working.

3. The plaintiff is now aged 59 years and he gave evidence describing how the accident occurred. Earlier in the morning he had been working from the top of the scaffolding removing an old sign, preparatory to installing a new sign in a slightly higher position. The scaffolding rose to a height of about 25 feet above the ground. The lowest horizontal bar was between 6 feet and 7 feet from the ground. A bamboo ladder was provided to enable workmen to climb up from the ground to the lowest horizontal bar. Above that horizontal bar the scaffolding was made up of horizontal bars which were affixed to the vertical uprights. The distance between the vertical uprights was about 2 feet 6 inches and the distance between the horizontal bars about 2 feet 2 inches. Once workmen had climbed up the ladder to the lowest horizontal bar, they then had to climb up the scaffolding itself to reach the top. The plaintiff stated that when he was working at the top of the scaffolding he sat straddling the top horizontal bar. His fellow workmen, Mr. T.K. Yau worked from a similar position.

4. Shortly before 11.40 a.m. Mr. Yau climbed down the scaffolding to go to lunch. He stated that on reaching the lowest horizontal bar, his practice was to slide down one of the vertical uprights for the remaining 6 to 7 feet, rather than using the ladder. Sliding down, according to him was a quicker method of descent and if he came down at a point some distance from the ladder, was also more convenient. The plaintiff stated that when he was about 15 feet from the ground he stepped on the next horizontal bamboo bar but it broke and he fell to the ground. According to his evidence the bamboo broke into two pieces. After falling he was taken by ambulance to hospital and never returned to the scaffolding.

5. Neither the plaintiff or the defendants called any witness who observed the accident. However, the 2nd defendant called Mr. T.K. Yau the man who earlier that morning had been working on the scaffolding with the plaintiff. Mr. Yau stated that he preceded the plaintiff down the scaffolding and had gone around the corner from the scaffolding to wash his hands when the plaintiff fell. Mr. Yau stated that when he returned he first saw the plaintiff sitting on the ground injured. After arrangements were made to take the plaintiff to hospital, Mr. Yau had lunch and climbed back up the scaffolding. He climbed up the ladder and then up the scaffolding to where he had worked in the morning. By the end of the day's work he had moved along the top of scaffolding to a position above the ladder. On coming down, upon reaching the bottom horizontal bar he, on this occasion, used the nearby ladder, to reach the ground level. Both in evidence-in-chief and under cross-examination he was emphatic that on his return to the scaffolding and thereafter he never saw any broken horizontal bamboo bars or other broken scaffolding. He continued to work on the scaffolding for the next 3 days after the accident.

6. Mr. C.M. Yu, the 3rd defendant, also gave evidence. He stated that he has been erecting scaffolding for more than 30 years. Together with one of his workers he erected the scaffolding from which the plaintiff fell. The scaffolding was erected on 1st July 1982, the day before the accident. Mr. Yu stated that the scaffolding was erected with bamboo poles of good quality. The scaffolding was not high and covered a relatively small area. In his opinion the scaffolding was erected in a workmanlike manner and was safe. He pointed out that he personally had climbed up the scaffolding in the course of its erection and had so tested the finished structure. More significantly he stated, that about 4 or 5 days later, he and his workman dismantled the scaffolding. During the dismantling he personally removed all the bamboo poles and handed them down to his workman who remained on the ground. On dismantling Mr. Yu stated he found no broker poles and that each of the poles he handed down to his workman were in good and sound condition. In his opinion bamboo rarely breaks into two pieces but if it weakens splits laterally. He further stated that at that stage no one had complained about the scaffolding. In fact, he only became aware of the accident some years later, when the plaintiff's application under the Employees Compensation Ordinance was werved on him.

7. The first factual question to determine is the cause of the plaintiff's fall. The evidence of the plaintiff is that when he stood on the bamboo bar it broke into two pieces. No other witness saw how he fell. However, all the other evidence supports the defence submissions, that the bamboo scaffolding was not defective and did not give way or break when stood on by the plaintiff. Mr. Yau climbed backup the scaffolding not long after the accident, returned down the scaffolding later that afternoon and worked on it for several further days. Yet he never saw any broken bamboo poles or had any difficulty in using the scaffolding on the day of the accident or thereafter. In cross-examination an attempt was made to show that he did not go up or down precisely the same path as the plaintiff, so might not have noticed the broken bamboo pole. However, the scaffolding was relatively small and only reached up to just above the 1st floor of the building. Mr. Yau was a much younger and, at least in court a much more alert man than the plaintiff. His evidence cast at least serious doubt on the plaintiff's allegation that the bamboo gave way.

8. In considering Mr. Yu's evidence I take into account that, as the scaffolding contractor, he was an interested party. He was unrepresented and both gave evidence and made submissions. I accept that he is a scaffolding contractor of considerable experience. Like Mr. Yau he was a much more impressive witness than the plaintiff. The importance of his evidence included the fact that when a few days after the accident, the scaffolding was dismantled, it was in good condition. He found no broken poles. As he personally dismantled the scaffolding he had the opportunity to examine each of the bamboo poles. He states he did so and I accept his evidence. I have considered whether the broken pole could have been replaced. However, I am satisfied that had that happened it would have been more probable than not that either Mr. Yau or Mr. Yu would have known of any repair or replacement. Neither did. On the evidence I reject that possibility.

9. When I consider the whole of the evidence, I find that the plaintiff has failed to establish that it was more probable than not that he fell because the bamboo pole broke under his weight. Counsel for the plaintiff submitted that even if the court reached that conclusion the evidence was still sufficient to establish that the system of work was unsafe. I was referred to the fact that no platform was provided next to the signboard from which the plaintiff, Mr. Yau and other persons could work. I accept that there was no such platform. Both workers had to straddle the scaffolding while working on the signboard. I agree that this appears to be a precarious, if common, Hong Kong method of carrying out work on scaffolding. If the plaintiff had fallen while working on the signboard from a straddling position, that fact alone may well have been powerful evidence to establish liability on the part of the remaining defendants.

10. But it is undisputed that when the plaintiff fell he had finished working and was descending the scaffolding. The lack of a working platform is therefore not relevant, on the particular facts of this case, to liability. Counsel went on to submit that the provision of a ladder at only one position of the scaffolding was inadequate and that above the bottom horizontal bar, a safety pole should have been provided. I am satisfied that the ladder was used for the purpose of climbing up to the scaffolding. I am also satisfied that workers, when descending, on reaching the bottom horizontal bar frequently, if recklessly, preferred to slide down the vertical uprights, rather than use the ladder. Again the plaintiff did not fall during that part of the descent and the existence, position and use of the ladder, does not assist in determining liability.

11. The accident occurred when the plaintiff was descending the scaffolding on his way to lunch. He was not carrying any material or equipment nor carrying out any work from the position from where he fell. Wholly unencumbered, he was descending the scaffolding at a place where the horizontal bars were at centres of about 2 feet 2 inches and the vertical bars were at centres of about 2 feet 6 inches. The plaintiff had long experience of using similar scaffolding in the course of his employment.

12. When I take all those factors into account I am not satisfied that the defendants, or either of them, were in breach of any duty of care, as a result of the plaintiff being required to descend that portion of the scaffolding, by using the scaffolding framework, as the only means of descent. The accident was most unfortunate and the plaintiff is entitled to the utmost sympathy for the injuries he has suffered and the detrimental effect they have had on his health and his subsequent income. However, in the present action he has failed to discharge the burden placed on him, to establish that the remaining defendants or either of them were negligent. The claim is accordingly dismissed.

13. There shall be an order nisi, pursuant to Order 42 Rule 5B(6) RSC that the plaintiff shall pay the costs of the 2nd defendant to be taxed if not agreed in accordance with the Legal Aid Regulations. I fix the costs of the 3rd defendant to be paid by the plaintiff at $500 plus disbursements approved by the Registrar. Liberty to apply in relation to any other consequential matters is reserved.