TSANG HING CHEUNG v. CHAN PO LING STELLA AND OTHERS

HCPI 869/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 869 OF 2001

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J U D G M E N T

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1. On 14 November 1998, the plaintiff was working at a private rear alley between Belcher Court, No. 2 Sai Cheung Street and Nam Hung Mansion, Nos. 22-23 Kennedy Town Praya when an aluminium bar about 3 feet long fell from a height and injured the plaintiff. The aluminium bar formed part of the top of a window frame at Flat B3 on the 20th floor of Belcher Court. The horizontal distance between the place where the aluminium bar fell and the plaintiff was 8 metres. The plaintiff was 2.5 metres away from the near edge of the 3 metre wide pavement at Kennedy Town Praya.

2. The 1st and 2nd defendants were registered as owners of the flat as at the date of the accident. The 3rd defendant was the contractor engaged to replace the windows at the flat with noise insulation windows and the 4th defendant was an employee of the 3rd defendant actually carrying out the replacement work.

3. On 9 November 2001, judgment in default of notice of intention to defend was entered against the 3rd defendant with damages to be assessed. Liability of the other defendants is in issue and I shall consider each of them below.

Liability of 1st defendant

4. It is common ground that the 1st defendant was an occupier of the flat.

5. In 1998, the 1st defendant learned that the flat qualified for ex gratia payments by the Government for noise insulation works which comprised improving electricity supply facilities; improving windows in the 2 bed-rooms and the sitting room; and installing/replacing air-conditioners in the 2 bed-rooms and the sitting room.

6. It was not until a few months later that the 1st defendant and her husband decided to take up the Government's offer. By this time, a not insignificant number of units at Belcher Court had completed their noise insulation works. The 1st defendant and her husband made enquiries with their neighbours and the 3rd defendant was recommended. The 3rd defendant was no stranger to them because the 3rd defendant's shop was located at Shop No. 14B on the ground floor of Belcher Court and had been around for sometime. The 1st defendant decided to engage the 3rd defendant. In my judgment, the 1st defendant's choice of the 3rd defendant as an independent contractor was reasonable and she selected an apparently competent contractor. The track record of the 3rd defendant was such that satisfied customers recommended them to the 1st defendant.

7. Under the general rule, the 1st defendant is not responsible for any tort committed by the 3rd defendant in the course of the execution of the work. Both counsel referred me to the following passages at paragraphs 5-48, 5-49 and 5-59 in Clerk & Lindsell on Torts, 18th edition:

"Introduction If the employer has employed an independent contractor to do work on his behalf the general rule is that the employer is not responsible for any tort committed by the contractor in the course of the execution of the work and in this respect the employees of the contractor, whilst acting as such, stand in the same position as their employer, so that the employer of the contractor is not liable for the torts committed by the contractor's employees. Of course, even though the damage complained of may have been caused by the wrongful act or omission of an independent contractor or his employee, it may also be attributable to the negligence or other personal fault of the employer. If, for example, he has negligently selected an incompetent contractor, or has employed an insufficient number of men, or has himself so interfered with the manner of carrying out the work that damage results, he will himself have committed a tort for which he can, of course, be held liable. Again if the employer has authorised or ratified the independent contractor's tort then, on normal principles, he will be jointly liable for such tort. So in Ellis v. Sheffield Gas Consumer's Co., where a gas company, which had no statutory powers to take up the streets for the purpose of laying their gas-pipes, employed a contractor to take up the surface of the streets and lay their pipes for them, and the contractor's employees, having laid their pipes, insufficiently reinstated the surface, whereby damage occurred, the gas company was held liable. As Erle J. stated: 'The cause of the accident was the very thing done in pursuance of the specific directions of the defendants contained in their contract.'" (Paragraph 5-48)

"Exceptions to the general rule: non-delegable duties To the general rule that an employer is not liable for the negligence of an independent contractor there are certain apparent exceptions. It is submitted, however, that these are not true exceptions (at least in so far as the theoretical nature of the employer's liability is concerned) for they are dependent upon a finding that the employer is, himself, in breach of some duty which he personally owes to the claimant. The liability is thus not truly a vicarious liability and is to be distinguished from the vicarious liability of an employer for his employee. If the circumstances are such that the law imposes a strict or absolute duty upon the employer, then he cannot discharge his duty by delegating performance of the work in question to an independent contractor. If, therefore, the duty is not fulfilled, the employer is liable even though the immediate cause of the damage is the contractor's wrongful act or omission. Such strict or absolute duties are often described as 'non-delegable' and may arise either by statute or at common law. For present purposes, they are to be contrasted with the ordinary duty to take reasonable care which can be discharged by the employment of a contractor reasonably supposed by the employer to be competent. At the least, the non-delegable duty is 'a duty not merely to take care, but a duty to provide that care is taken,' so that, if care is not taken, the duty is broken." (Paragraph 5-49)

"Extra-hazardous acts In many of the cases cited above emphasis was placed upon the dangerous nature of the defendant's undertaking and in Honeywill and Stein Ltd v. Larkin Bros Ltd Slesser L.J., delivering the judgment of the Court of Appeal, enunciated a general principle governing 'extra-hazardous or dangerous operations'.

'Even of these,' his Lordship said, 'it may be predicated that if carefully and skilfully performed, no harm will follow; as instances of such operations may be given those of removing support from adjoining houses, doing dangerous work on the highway, or creating fire or explosion: hence it may be said, in one sense, that such operations are not necessarily attended with risk. But the rule of liability for independent contractors' acts attaches to these operations, because they are inherently dangerous, and hence are done at the principal employer's peril.'

The facts of the case were that the plaintiffs had procured the defendants, as independent contractors, to take photographs of the interior of a cinematograph theatre, and the premises were damaged by fire owing to the defendants' negligence in the use of magnesium flash powder. The plaintiffs were held to be liable to the owners of the theatre of the damage done, and entitled to recover from the defendants the sum paid by them (the plaintiffs) to the owners. In the light of this case it appears that a non-delegable duty exists whenever an independent contractor is employed to perform an 'extra-hazardous' act, but difficulty arises in determining the meaning of 'extra-hazardous'. As Slesser L.J. recognised in the passage set out above, even 'extra-hazardous' acts will not cause damage if carefully and skilfully performed. Yet any act may cause damage if it is not carefully and skilfully performed, and 'it is clear that the ultimate employer is not responsible for the acts of an independent contractor merely because what is to be done will involve danger to others if negligently done'. Slesser L.J. himself said that 'extra-hazardous' acts were 'acts which, in their very nature, involve in the eyes of the law special danger to others; of such acts the causing of fire and explosion are obvious and established instances.' The principle of Honeywill could be framed to apply to operations involving the use of things recognised in law to be 'dangerous in themselves'. However, the Court of Appeal in Alcock v. Wraith held that in a case of re-roofing a slate roof with a tile roof, within a row of terraced houses, there was a special risk due to the known difficulties of making waterproof joints between slates and tiles. The defendants were liable (for trespass, nuisance and negligence) for damage consequent on the re-roofing work of their independent contractor." (Paragraph 5-59)

8. The next question is whether the 1st defendant has a non-delegable duty in this case.

9. There is no evidence of any defective condition of the windows or the window frames. The evidence of the 4th defendant is that the frames were so securely affixed to the wall that he had to apply force in using a hammer and chisel to loosen or dislodge the frames.

10. The frames did not overhang or overlook the private rear alley. The plaintiff was 8 metres away from where the aluminium bar was and the plaintiff was 2.5 metres away from Kennedy Town Praya or any highway.

11. Mr Victor Gidwani cited Walsh v Holst & Co. Ltd & others [1958] 3 All ER 33 (he should have cited [1958] 1 WLR 800) and contended that:

"the law casts a separate common law duty of care upon owners of occupiers of property who employ contractors to perform, upon or adjoining highway, work which is likely to involve danger to persons using the adjoining highway. Such duty is personal to the owner and cannot be discharged by delegation to independent contractors because of the hazardous nature of the operation."

12. I reject his submission. To start with, Morris L.J. stated clearly at the beginning of his judgment at p. 806 that he was stating the law's special protection of users of the highway and the plaintiff in the case before me was not a user of the highway at the time of the accident.

"As Dennings L.J. pointed out in his judgment in Mint v. Good, the law of England has always taken particular care to protect those who use a highway and puts on the occupier of adjoining premises a special responsibility for the structures which he keeps beside the highway."

13. Walsh v Holst was cited in paragraph 5-54 in Clerk & Lindsell in the paragraph on "Operations on the highway" and by Cheung JA, giving the judgment of the Court of Appeal in Chu Wo Heung and Pak Yuen Sau v Hui Lai Wa and others, CACV No. 1715 of 2001, unreported, 15 March 2002, at paragraph 25, as authority on a structure projecting out from its place and overhanging the highway:

"Overhanging structure

25. Further as shown in cases such as Cunard v. Antifyre [1933] 1 KB 551 an occupier of place, apart from owing a duty towards visitors to the place under its control, also owes a duty to those who may be injured by the structure which projects out from its place and overhangs the highway. This duty is not discharged by employing an independent contractor to do it : Walsh v. Holst Co. Ltd. [1958] 1 W.L.R. 800. If the injury occurred while Mr. Yuen was on government land, the 5th defendant was equally liable."

14. Last but not least, as Widgery LJ pointed out in Salsbury v Woodland [1970] 1 QB 324 at p. 340, the only thing decided by Walsh v Holst was that on those facts the precautions which had been taken against injury rebutted the presumption of negligence which might otherwise have arisen under the doctrine of res ipsa loquitur.

15. I extract the following principles of law from Salsbury v Woodland:

(a) An employer who employs an independent contractor is not vicariously responsible for the negligence of that contractor.

(b) The first well-determined class of case in which the direct and primary duty upon an employer to see that care is taken concerns "extra-hazardous acts".

(c) The second well-determined class of case concerns dangers created in a highway.

(d) There is no third class of case in which the employer commissions work to be done near a highway in circumstances in which, if due care is not taken, injury to passers-by on the highway may be caused.

16. (d) is the ratio of Salsbury v Woodland and I make no apology for quoting extensively from Salsbury v Woodland:

"It is trite law that an employer who employs an independent contractor is not vicariously responsible for the negligence of that contractor. He is not able to control the way in which the independent contractor does the work, and the vicarious obligation of a master for the negligence of his servant does not arise under the relationship of employer and independent contractor. I think that it is entirely accepted that those cases - and there are some - in which an employer has been held liable for injury done by the negligence of an independent contractor are in truth cases where the employer owes a direct duty to the person injured, a duty which he cannot delegate to the contractor on his behalf. The whole question here is whether the occupier is to be judged by the general rule, which would result in no liability, or whether he comes within one of the somewhat special exceptions - cases in which a direct duty to see that care is taken rests upon the employer throughout the operation.

This is clear from authority; and for convenience I take from Salmond on Torts, 14th ed. (1965), p. 687, this statement of principle:

'One thing can, however, be said with confidence: the mere fact that the work entrusted to the contractor is of a character which may cause damage to others unless precautions are taken is not sufficient to impose liability on the employer. There are few operations entrusted to an agent which are not capable, if due precautions are not observed, of being sources of danger and mischief to others; and if the principal was responsible for this reason alone, the distinction between servants and independent contractors would be practically eliminated from the law.'

I am satisfied that that statement is supported by authority, and I adopt it for the purposes of this judgment.

One can compare at once that statement with the statement of principle upon which the judge relied. Having referred to some of the considerations to which I have myself already referred, he said:

'The principal, unlike the employer, is not liable for incidental acts of negligence during the work; for instance, dropping a hammer on someone's head; but he is liable if the very act he orders to be done contains in it a risk of injury to others, and someone is injured as a result of the contractor's negligence as a consequence of that risk. In this case' - he meant the instant case - 'there can be no doubt that there was an inherent risk of injury to others when the tree was felled unless proper care was taken to get rid of the risk.'

I make two observations upon those words of the judge ...

Secondly, I would venture to criticise the statement of principle which he applied as being too wide. Taken literally, it would mean that the fare who hired a taxicab to drive him down the Strand would be responsible for negligence of the driver en route because the negligence would be negligence in the very thing which the contractor had been employed to do. No one is disposed to suggest that the liability of the employer is that high; and although the judge reinforced himself by certain observations of Romer L.J. in Penny v. Wimbledon Urban District Council [1899] 2 Q.B. 72, 78, in my opinion, the test which he applied was far too stringent.

In truth, according to the authorities there are a number of well-determined classes of case in which this direct and primary duty upon an employer to see that care is taken exists. Two such classes are directly relevant for consideration in the present case. The first class concerns what have sometimes been described as 'extra-hazardous acts' - acts commissioned by an employer which are so hazardous in their character that the law has thought it proper to impose this direct obligation on the employer to see that care is taken. An example of such a case is Honeywill & Stein Ltd. v. Larkin Bros, (London's Commercial Photographers) Ltd. [1934] 1 K.B. 191. Other cases which one finds in the books are cases where the activity commissioned by the employer is the keeping of dangerous things within the rule in Rylands v. Fletcher (1868) L.R. 3 H.L. 330 and where liability is not dependent on negligence at all.

I do not propose to add to the wealth of authority on this topic by attempting further to define the meaning of 'extra-hazardous acts'; but I am confident that the act commissioned in the present case cannot come within that category. The act commissioned in the present case, if done with ordinary elementary caution by skilled men, presented no hazard to anyone at all.

The second class of case, which is relevant for consideration, concerns dangers created in a highway. There are a number of cases on this branch of the law, a good example of which is Holliday v. National Telephone Co. [1899] 2 Q.B. 392. These, on analysis, will all be found to be cases where work was being done in a highway and was work of a character which would have been a nuisance unless authorised by statute. It will be found in all these cases that the statutory powers under which the employer commissioned the work were statutory powers which left upon the employer a duty to see that due care was taken in the carrying out of the work, for the protection of those who passed on the highway. In accordance with principle, an employer subject to such a direct and personal duty cannot excuse himself, if things go wrong, merely because the direct cause of the injury was the act of the independent contractor.

This again is not a case in that class. It is not a case in that class because in the instant case no question of doing work in the highway, which might amount to a nuisance if due care was not taken, arises. In my judgment, the present case is clearly outside the well defined limit of the second class to which I have referred. Mr. Bax, accordingly, invited us to say that there is a third class into which the instant case precisely falls, and he suggested that the third class comprised those cases where an employer commissions work to be done near a highway in circumstances in which, if due care is not taken, injury to passers-by on the highway may be caused. If that be a third class of case to which the principle of liability of the employer applies, no doubt the present case would come within that description. The question is, is there such a third class?

Reliance was placed primarily on three authorities ...

The last case relied upon was Walsh v. Holst & Co. Ltd. [1958] 1 W.L.R. 800, a decision of this court. In that case the occupier of premises adjoining the highway was carrying out works of reconstruction, which involved knocking out large areas of the front wall. He employed for that purpose a contractor, who employed a sub-contractor. It was obvious to all that such an operation was liable to cause injury to passers-by by falling bricks unless special precautions against that eventuality were taken. Indeed, very considerable precautions were so taken. However, on a day when the only workman employed was an employee of the sub-contractor, one brick escaped the protective net, fell in the street and injured a passer-by. The passer-by sued the occupier, the contractor, and the subcontractor, relying on the doctrine of res ipsa loquitur. In my judgment, the only thing decided by that case was that on those facts the precautions which had been taken against such an injury rebutted the presumption of negligence which might otherwise have arisen under the doctrine of res ipsa loquitur. No attempt appears to have been made in argument to distinguish the liability of the occupier as compared with that of the contractor or sub-contractor, and it certainly was not material to the decision. But Mr. Bax relied upon it for dicta which unquestionably are helpful to him. He referred first to the judgment of Hodson L.J., who, having stated the doctrine of res ipsa loquitur, went on to deal with the relevant positions of the parties. He said at p. 804:

'So far as the board is concerned,' [the board were the occupiers] 'the law as stated by Romer L.J. in Penny v. Wimbledon Urban District Council is applicable' [1899] 2 Q.B. 72, 78: 'When a person, through a contractor, does work which from its nature is likely to cause danger to others, there is a duty on his part to take all reasonable precautions against such danger, and he does not escape from liability for the discharge of that duty by employing the contractor if the latter does not take these precautions.'

Hodson L.J. observed that no question of collateral negligence arose and accepted the proposition, without further inquiry, that if negligence were established, each of the defendants would in Walsh's case have been liable.

Sellers L.J. touched on the same point. He said, at p. 812:

'As the electricity board had authorised work to be done adjoining the highway which might without due precautions cause injury to anyone on the highway, the authorities already cited by my Lords show that the board would be liable for the negligence of the contractors or sub-contractors in failing to take due precautions. Likewise, the contractors would be liable for any negligence in the performance of their duties delegated to sub-contractors.'

Mr. Bax said with force that, if that be the law, then he needed no more in the present case. But in my judgment, having considered this matter with such care as I can, I can find nothing in the authorities to which Sellers L.J. referred which justifies a conclusion in the terms which he uses; and, as I have already said, this decision was obiter because the case turned on the absence of negligence and not upon any nice question of which of the defendants might have been liable if negligence had been proved.

Accordingly, in my judgment, there is no third class of cases of the kind put forward by Mr. Bax; and it was for those reasons that I concurred" per Widgery LJ at pp. 336-340.

"The occupier through his wife employed an apparently competent independent contractor to do the work and, therefore, on general principle he is not liable for that contractor's negligence. There are well-defined exceptions to that rule. I read first from the judgment of Atkin L.J. in Belvedere Fish Guano Co. Ltd. v. Rainham Chemical Works Ltd. [1920] 2 K.B. 487, 504:

'In my judgment it follows from the facts stated that these defendants are liable to the plaintiffs. It will be sufficient to refer to Pickard v. Smith (1861) 10 C.B.N.S. 470 and Penny v. Wimbledon Urban District Council [1899] 2 Q.B. 72, 78 as establishing the appropriate principle of law: 'When a person, through a contractor, does work which from its nature is likely to cause danger to others, there is a duty on his part to take all reasonable precautions against such danger, and he does not escape from liability for the discharge of that duty by employing the contractor if the latter does not take these precautions.''

I emphasise the words 'from its nature is likely to cause danger.'

That is further illustrated by the judgment of the Court of Appeal in Honeywill's case where Slesser L.J. giving the judgment of the court, said [1934] 1 K.B. 191, 196, 197:

'It is well established as a general rule of English law that an employer is not liable for the acts of his independent contractor in the same way as he is for the acts of his servants or agents, even though these acts are done in carrying out the work for his benefit under the contract: ... the ultimate employer is not responsible for the acts of an independent contractor merely because what is to be done will involve danger to others if negligently done.'

The act of felling the tree did involve danger to others because it was negligently done. But it was a perfectly simple job to remove this tree without causing any danger to anybody and it was not work which was inherently dangerous so as to come within that exception.

The second exception is a special one - that of work on the highway. There, liability for independent contractors arises because those who have statutory authority to dig up a highway themselves owe a duty to the public using that highway, and the fact that they have a statutory authority to excavate does not absolve them from that duty, even though they employ an independent contractor to do the work. It is not a vicarious liability at all but a direct one; and this explains Penny v. Wimbledon Urban District Council [1899] 2 Q.B. 72 on which the judge relied. Compare Hardaker v. Idle District Council [1896] 1 Q.B. 335, 347 and Earl of Halsbury L.C. in Holliday v. National Telephone Co. [1899] 2 Q.B. 392, 398.

Mr. Bax sought to prove a third exceptional case, namely, acts done near a highway; but I do not think that the cases he cited (which have already been discussed by my brother Widgery) bear out his contention. The observation of Sellers L.J. in Walsh v. Holst & Co. Ltd. [1958] 1 W.L.R. 800, 812 seem to support it, but it is an obiter dictum and applies to different circumstances and is, in my judgment, too widely stated.

I agree, therefore, that this is a case within the general rule and that the occupier is not liable." per Harman LJ at pp. 344-345.

"The first question to be considered in this court is whether this is a case in which the occupier is liable for the negligence of the independent contractor. The general rule as to such liability is well known, and is well stated in Salmond on Torts, 14th ed. (1965), p. 685, which provides a convenient and compact text from which to take the law.

'The general rule is that, although an employer is responsible for the negligence and other wrongdoing of his servant, he is not responsible for that of an agent who is not a servant but an independent contractor. There are, however, certain cases in which an employer is liable for the acts of an independent contractor';

and a little later it is as regards the cases thus referred to stated that in them the employer is 'under a primary liability and not a secondary one.' Similarly, in Winfield on Torts, 8th ed. (1967), p. 649, the principle is put in this way:

'... the true question in every case in which an employer is sued for damage caused by his independent contractor is whether the employer himself was in breach of some duty which he himself owed to the plaintiff.'

I reject as ill-founded any suggestion that the law on this subject was, in passing, revolutionised by Thomson v. Cremin [1956] 1 W.L.R. 103n. an invitor and invitee case, decided in 1941, which first came to be reported in [1953] 2 All E.R. 1185. That decision was of limited ambit, and as regards that ambit it was, soon after being brought into the full light, supplanted by section 2 (4) (b) of the Occupiers' Liability Act, 1957.

There having been a full examination of the authorities by Widgery L.J., I do not propose to discuss them further individually but simply to state the conclusions to be drawn from them as a whole. There are indeed, certain categories of cases in which an occupier is under such a primary duty to others that he in effect warrants the safety of his property against those who are injured by what happens upon it, or alternatively is personally responsible for having any work on it done in a competent manner even if he has selected a competent independent contractor.

Those categories, which I do not propose to attempt to list exhaustively, include one where the occupier is under a statutory duty to have work either safely or properly done or to keep his property in safe or proper repair. They include another where the dangers are created by work done upon a public highway, whether by a public authority or others; and this is a category discussed under that precise and limited heading in Salmond on Torts, 14th ed. (1965), p. 691. It is there treated as being a separate and narrow category, and rightly so to my mind - on the assumption, of course, that the phrase 'upon a highway' or 'in a highway' includes the air space above it and the ground below it. This is a category into which the present case does not fall.

There is another category where the work done is so inherently dangerous, or, as it is sometimes termed, 'extra hazardous,' in relation either to those on a highway or to neighbours generally, that the public interest demands absolute responsibility. Typical instances include work done with or the manufacture of explosives or inflammable material. It is into that category that the present case was placed by the judge.

As regards work done on land close to a highway, there is, to my mind, a sharp distinction between cases in which the work done is inherently dangerous and cases where there is no such danger, although there may be risks entailed if the work is done incompetently. The dividing line between the two classes of case may sometimes be difficult and involve questions of degree; but generally speaking this is a matter of common sense as to what, in plain English, is 'inherently dangerous' having regard, inter alia, to the distance from the highway of the place where the work is being done.

In the present case it seems clear to me that there was nothing 'inherently dangerous' in the operation of removing this particular hawthorn tree. Any competent workman could do it perfectly safely and without the slightest risk to the telephone wires, to the house, or to any other property, if he tackled it in the standard way: nor could any occupier of land normally foresee that there was any danger involved in such an operation or that a competent contractor could be prone to what was described as 'extreme stupidity.' The whole position as regards 'inherent danger' might be very different if the case was concerned with the removal of a 60-foot tree. The appropriate operation in the instant case was, incidentally, as different from what is usually termed 'tree-felling' as a hawthorn tree differs from the single-trunk, tall trees to which, of course, the word 'felling' is normally an appropriate word to apply.

It follows that as regards the present case the occupier is not responsible for the astonishing negligence of the contractor, and the former's appeal must succeed." per Sachs LJ at pp. 347-348.

17. The "Work" in this case as defined in paragraph 2 b of the Statement of Claim was "to replace, inter alia, the window frames at the Flat". In my judgment, such work does not fall within the exception of "extra-hazardous acts". It is no more hazardous than felling a 25-ft tree. Loosening or dislodging window frames from the wall at a height, if done with ordinary elementary caution by skilled men, presented no hazard to anyone at all and are in any event not "extra-hazardous".

18. Mr Victor Gidwani relied on section 4B of the Summary Offences Ordinance, Cap. 228. For the purpose of that Ordinance, "public place" is defined in section 2 to include "lanes, alleys ... passages, paths, ways and places to which the public have access either continuously or periodically, whether the same are the property of the Government or of private persons". Section 4B provides that:

"(1) If anything is dropped or allowed to fall from any building to the danger or injury of any person in or near a public place, the person who drops that thing or allows it to fall commits an offence and is liable to a fine of $10000 and imprisonment for 6 months.

(2) If anything is dropped or allowed to fall from any building in the course of the construction, repair or decoration of the building or part thereof, to the danger or injury of any person in or near a public place, the principal contractor on the site and the contractor carrying out the construction, repair or decoration commits an offence and is liable to a fine of $50000 and imprisonment for 1 year.

(3) It shall not be a defence to a charge against a contractor under subsection (2) that the person who dropped the thing or allowed it to fall has not been prosecuted or that the thing was dropped or allowed to fall without the consent or knowledge of the contractor, but a contractor so charged shall not be convicted if he proves to the satisfaction of the court that he could not reasonably have prevented the thing being dropped or allowed to fall to the danger or injury of any person in or near a public place or that reasonable measures had been taken by him or another person to prevent such an occurrence."

19. If anything, section 4B is against the plaintiff. The actual wrong doer commits an offence under subsection (1). The contractor commits an offence under subsection (2) unless the contractor brings himself within subsection (3). The legislature dealt with the hazard of dropping objects from buildings by imposing criminal liabilities on the actual wrong doers and the contractors, but not the occupiers or owners of the buildings.

20. 2 others points made by Mr Victor Gidwani can be dealt with briefly. His reliance on section 3(4)(b) of the Occupiers Liability Ordinance, Cap. 314, is plainly misconceived because the plaintiff was not a visitor to the flat and the 1st defendant was not an occupier of the alley. His contention of nuisance is also plainly misconceived in that the plaintiff had no interest in land whether in Belcher Court or the alley and there was no public nuisance, the plaintiff being injured in a private alley.

21. On a question of fact, I do not believe that the husband of the 1st defendant paid any attention to the work at the window where the frame fell. That work went on inside a bed-room and he was in the sitting room. Work in fact took place at 5 windows and the flat was filled with noise and littered with debris. He had 2 small children (a 4-year old and a 7-year old) to look after and there were 4 - 6 workers inside that 400 sq. ft. flat. Consistent with his conduct after the accident, he was indifferent to the process of implementation of the window replacement works.

22. I have carefully considered Wong Sau Chung and Wong Sau Mui v Ho Kam Chiu and others HCPI 872 of 1996, unreported, Seagroatt J, 27 January 2000, and for reasons given above, hold that the 1st defendant is not liable to the plaintiff.

Liability of 2nd defendant

23. The contention that in paragraph 3 of the Amended Defence of the 1st and 2nd Defendants that the 2nd defendant "had in fact duly transferred all her beneficial interests in the Flat to the 1st Defendant by virtue of a verbal agreement" is frivolous or vexatious, see the Conveyancing and Property Ordinance, Cap. 219, including sections 3-7.

24. If the 2nd defendant were an occupier, then for the same reasons given on her co-owner's liability, the 2nd defendant is also not liable to the plaintiff. But there is an additional reason why she is not liable.

25. There is no evidence that the 2nd defendant was an occupier of the flat at the time of accident and the evidence of the 2nd defendant, the 1st defendant and her husband was that the 2nd defendant was not an occupier.

Liability of 3rd defendant

26. As judgment on liability has already been entered against the 3rd defendant, the only matter is assessment which will be dealt with below.

Liability of 4th defendant

27. The only "precaution" taken was the use of a 4 ft by 7 ft piece of canvass, the true purpose of which was to hold falling debris instead of falling objects like window frames. In any event it was clearly useless to stop the top frame from falling as there was a big gap at the top of the window opening extending over the whole width of the window opening and the height of the air-conditioner at the top of the window opening. I reject the 4th defendant's account of the window frame falling by itself. The inference which I draw from the fact that the aluminium bar landed 8 metres away is that it fell in the course of the 4th defendant dislodging it, probably using a hammer and a chisel. If this inference is not permissible, the facts speak for themselves. The window frame which was hitherto fastened onto the wall would not have fallen into the rear alley in the course of the 4th defendant's removal of the window frame without some want of care on his part.

28. The plea of contributory negligence put forward by Messrs Au-Yeung, Cheng, Ho & Tin, former solicitors for the 4th defendant, in paragraph 7 of the 4th defendant's Defence is plainly nonsensical and I reject it. The plaintiff was working in the alley on the ground level and the aluminium bar fell from the 20th floor above 8 metres across.

29. I find the 4th defendant liable to the plaintiff.

Quantum

30. The plaintiff was 42 years of age at the time of accident.

Pain, suffering and loss of amenities

31. The injuries are not pleaded in the Statement of Claim which merely refers to the Statement of Damages for "full particulars". Messrs Raymond T.M. Lau & Co., solicitors for the plaintiff, signed the Revised Statement of Damages for the Plaintiff, paragraph 6 of which reads as follows:

"The Plaintiff refers to the Statement of Claim, medical reports and his witness statement for full particulars of his injuries, treatment and permanent disabilities and prognosis."

32. Neither counsel cited any case to assist me on quantum. Mr John Kerr referred me to paragraphs 2504 and 2551 in Butterworths' Hong Kong Personal Injury Service. Mr Victor Gidwani also relied on the case noted in paragraph 2504, i.e. Chung Hok Sung v Li Kam Ming & another HCPI 393 of 1995. Having regard to the fact that the injury to the plaintiff was to his the dominant hand, and the deflation since 1998, I assess damages for pain, suffering and loss of amenities at $250,000.

Past loss of earnings

33. The plaintiff's evidence on damages is wholly unsatisfactory. He was neither truthful nor forthcoming in his evidence. The burden of proving loss and damage is on him and if there is no evidence on a point, then he fails.

34. The plaintiff was an electrician. He was a casual worker earning a daily wage, working on different projects or jobs which lasted 2 - 3 months. I do not recall being told about the time gap between 2 jobs.

35. He had the audacity to assert in paragraph 19 of his witness statement dated 4 March 2002 that at the time of the accident, he was earning $24,000 a month and in paragraph 24 that had the accident not happened, he anticipated that his earnings would have increased by at least 10% per annum.

36. In his statement made to the police on 30 November 1998, he claimed that his monthly income was approximately $20,000.

37. He was asked to identify the salary payments from his employer at the time of the accident and he pointed only to 3 payments, i.e. $10,140 on 19 September 1998, $15,200 on 10 November 1999 and $9,200 on 5 January 1999. These add up to $34,540 for the period starting from the date of his employment to the date of the accident on 14 November 1998. I do not believe that his daily wage was $800. $10,140 is not a multiple of $800. I do not believe his evidence on the commencement date and on the footing that at least 15 days must have elapsed before he was paid on 19 September 1998, I took 5 September 1998 to be the earliest commencement date. From 5 September to 14 November 1998, his earnings totalled $34,540. There was no evidence on whether that job finished on or about 14 November 1998 or how much longer he would have been employed on that job had he not been injured. In the absence of evidence I see no reason why I should assume that his employment would have continued. He had only himself to blame for not being forthcoming in his evidence. There was also no evidence on the time gap between that employment and the preceding one. According to his bank book, the date of the credit entry before the 19 September 1998 credit entry was 28 July 1998. Assuming in the plaintiff's favour that the preceding employment ended on 28 July 1998, he earned $34,540 between 28 July 1998 and 14 November 1998. There is no evidence of his income from earlier jobs which means that there is no evidence that his income from earlier jobs was higher than $34,540 for a 3 1/2 month period. Based on the wholly unsatisfactory evidence before me, I find that his average monthly income at the time of accident was $9,869.

38. He was granted sick leave from 14 November 1998 to 1 December 1999 and his loss of income during this 121/2 month period amounted to $123,363.

39. The plaintiff's witness statement was positively uninformative about his income after the sick leave period and it is not possible to make any finding on his income from 1 December 1999 to the date of trial. He chose to say no more than that he could only resume working in July 2000 but said nothing about his income from being a wall-painter and a light electrical worker. He then went on to say that from the middle of September 2000 to middle of May 2001 he worked as a light-duty electrician with Yee Hing at a daily wage of $550, making no attempt to say what his monthly income was. He then claimed he was dismissed by Yee Hing and he asserted in paragraph 23 that:

"I remained unemployed and could only engage in light electrical work on casual basis so that I could have sufficient rest time for recovery of power of my right arm whenever I completed an assignment."

40. There he lied. Almost immediately after the Yee Hing job ended and his employment lasted until the Yee Hing job was finished, he worked for the MTR, the income from which was credited into his bank account at p. 305 of the bundle. He told the Court nothing about his job from December 2001 or early 2002 at the science park at a daily wage of $700.

41. It is incumbent on the plaintiff to prove his loss and damage. It is not the function of this Court to go through his bank passbooks and try to guess his income or to plough through the bundle to try to work out a figure.

42. In my judgment, the plaintiff has not proved what his income from 1 December 1999 to the date of trial was, and thus has not proved that he has suffered any loss of income as from 1 December 1999, compared with his pre-accident average monthly income of $9,869.

Loss of future earnings

43. The plaintiff's right hand achieved with lifting force of 19 kg, carrying force of 19 kg, pushing force of 85 kg and pulling force of 80 kg at the final physical and work tolerance evaluation on 26 November 2000.

44. The plaintiff should have no problem with almost all works of the electrician except working on heavy cables. There is no evidence that his work prior to the accident involved lifting work materials of about 50 kg and carrying roll of circuit about 80 kg for the installation task in his job. On the date of accident he was working at the alley between 2 residential buildings. He was not working on cables with circumference measuring at least 630 mm. There was no difference in pay between an electrician working on heavy cables and an electrician working at a residential or office building or unit. The plaintiff has not made out any case of loss of future earnings.

Loss of earning capacity

45. This involves quantifying the present value of the risk of the financial damage which the plaintiff will suffer if the substantial or real risk that the plaintiff will lose his present job at some time before the estimated end of his working life, having regard to the degree of the risk, the time when it may materialise, and all the circumstances of this case including the plaintiff's chances of getting a job at all, or an equally well paid job. The plaintiff has made no attempt to tell me what his present job is, or to establish any risk that he will loss his present job. He has not begun to make out any case for loss of earning capacity.

Special damages and tonic food

46. Like all the other items, there is a paucity of evidence.

47. I accept Mr John Kerr's submission and assess medical expenses at $6,320 and tonic food at $5,000.

Summary

48. I assess pain, suffering and loss of amenities at $250,000, past loss of earnings at $123,363, and special damages and tonic food at $11,320, adding up to $384,683.

Employees' compensation

49. But for the point about giving credit for the money he received by way of employees' compensation, I would have entered judgment in favour of the plaintiff against the 3rd and 4th defendants in the sum of $384,683, with interest at 2% per annum on $250,000 from 24 October 2001 to the date of judgment and interest at 4.07% per annum on $123,363 and on $11,320 from 14 November 1998 to the date of judgment

50. It is common ground the plaintiff would give credit for the money he received by way of employees' compensation in the sum of $388,640. The certificate of assessment is dated 28 January 2000 and the plaintiff's bank passbook shows that he received it by 25 February 2000, 1 year 3 1/2 months after the date of the accident, but 1 year 8 months before the date of issue of the writ. $388,640 exceeds $384,683 by $3,957. The plaintiff has not proved any loss or damage in excess of what he should give credit for and no award should be made in his favour.

Judgment

51. I order that:

(a) The plaintiff's action against the 1st and 2nd defendants be dismissed.

(b) The plaintiff's action against the 4th defendant be dismissed.

52. The 1st and 2nd defendants have wasted time on the issue of the 2nd defendant's ownership of the flat and the feigned concern of the 1st defendant's husband in the window replacement works. The issue of ownership is irrelevant and if relevant I would have found against the 2nd defendant both in law and in fact. I make an order nisi that judgment be entered in favour of the 1st and 2nd defendants against the plaintiff for 75% of their costs of this action. The 4th defendant has lost on liability and the plaintiff has not established any loss or damage in excess of employees' compensation. I make an order nisi that there be no order as to costs between the plaintiff and the 4th defendant and no order as to costs between the plaintiff and the 3rd defendant in the assessment of damages.

53. I make a further order nisi that the plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.