LAM YUET KAM v. TSUI FONG FUN t/a KIN WANG CLEANING SERVICES CO. AND ANOTHER

HCPI 235/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.235 OF2001

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J U D G M E N T

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1) The plaintiff claims damages against the 1st and 2nd defendants for personal injuries sustained by her when she fell from a ladder while performing cleaning work at the lobby of Vista Paradiso, a residential estate in Ma On Shan.

2) There seems to be little dispute that the wooden ladder (which is the normal folding type ladder) on which the plaintiff was working was defective and therefore unsafe since the hinge at the very top part of the ladder came loose causing the ladder to collapse and resulting in the plaintiff falling off it.

3) The plaintiff claims against the 1st defendant as her employer at the time of the accident and as such owed her a duty to provide her a safe place of work. The claim against the 2nd defendant is brought on the footing that the 2nd defendant, who had sub-contracted the cleaning work to the 1st defendant, had caused the plaintiff to have to work on an unsafe ladder whether or not the ladder in question was provided by the 2nd defendant.

4) At the outset of this case, I was informed by the parties that while the 1st and 2nd defendants have agreed with the plaintiff to a global figure of $850,000 being the total quantum in this case on the basis of full liability, the intervener, whilst not in any position to agree in the same way as the 1st and 2nd defendants, would not dispute that the sum of $850,000 is a reasonable amount for quantum in this case. That figure of $850,000 is inclusive of interests.

5) It is the plaintiff's case that she was recruited by the 1st defendant, who operated the Kin Wang Cleaning Service Company, to be a casual cleaning worker at a daily wage of $300. The plaintiff would be contacted by the 1st defendant the night before if there was cleaning work to be done the following day and would be told by the 1st defendant where to go for such work. It is also the plaintiff's evidence that the 1st defendant would normally provide all the cleaning equipment for their work.

6) The night before 20 October 1998, the plaintiff was contacted by phone by the 1st defendant to proceed to Vista Paradiso in Ma On Shan the next day for cleaning work to be done there. Upon arrival there with three other workers, the plaintiff was met by a Mr Chan whom she knew to be another cleaning worker of the 1st defendant but who would at times be the person to whom the 1st defendant would give instructions and who would in turn relay those instructions to the other workers of the 1st defendant.

7) On this occasion, Mr Chan took the plaintiff to a storeroom on the ground floor of one of the blocks in Vista Paradiso from where the plaintiff obtained tools and equipment for the cleaning works. These included a bucket, cloth and rubber gloves but no ladder and no long handle brooms.

8) Mr Chan then led them to the lobby to be cleaned and asked the plaintiff to wait for him while he fetched a ladder since, as he told her, they would need a ladder to reach the required height for the cleaning. Mr Chan went away and came back with a wooden ladder which is the ladder on which the plaintiff ultimately met her accident.

9) The plaintiff's evidence was that they carried out the cleaning work on the lobby of Vista Paradiso. The other two workers were told by Mr Chan to clean the mail boxes while the plaintiff was instructed to clean the pillars of the lobby which were about two and a half times her height, estimated to be about 15 feet high.

10) The plaintiff did not see Mr Chan during or after lunch. They stopped for lunch between 12 noon and 1 p.m. resuming work at 1:30 p.m. After the lunch break, the plaintiff was standing on the two steps of the ladder just below the very top cleaning the top part of the pillar when she heard a noise coming from the hinge of the ladder at its apex, then the hinge came loose and the ladder collapsed inward. The plaintiff fell down from where she was standing on the ladder and lost consciousness.

1st defendant's case

11) The 1st defendant was not represented throughout this case but acted in person. Her defence as pleaded was a simple denial of negligence.

12) At the trial she elected not to give evidence and called no evidence in support of her case. Indeed the only question which she asked of the plaintiff in cross-examination was a suggestion made to the plaintiff that the plaintiff was not employed by her but that the plaintiff was only introduced by her to work at Vista Paradiso. Needless to say this suggestion was denied by the plaintiff.

13) No positive case was put forward by the 1st defendant on the issue of liability.

The 2nd defendant's case

14) The 2nd defendant called two witnesses.

15) The first witness called by the 2nd defendant was its foreman Kee Kwai Ting ("Mr Kee") at Vista Paradiso when the accident happened. His evidence was that the 2nd defendant had obtained a cleansing contract from the management of Vista Paradiso in about August or September of 1998 and he was transferred to Vista Paradiso to be the foreman in charge of the cleansing works there. Apart from himself and another worker called Ah Kei, the 2nd defendant had no other employee stationed in Vista Paradiso but sub-contracted the rest of the cleansing works to the 1st defendant who provided casual workers to do such works there. The plaintiff was one such casual worker provided by the 1st defendant.

16) He further gave evidence that he would give instructions to one Chan Wai Chau ("Chan"), the head worker of the 1st defendant at Vista Paradiso and Chan would then pass on such instructions and liaise with the other casual workers of the 1st defendant as to the work that needed to be done.

17) His evidence was that by arrangement between the 1st and 2nd defendants, the 2nd defendant would provide all the cleaning equipment needed for the cleaning works to be carried out by the workers of the 1st defendant.

18) On the day of the accident, he had instructed Chan to tell the workers of the 1st defendant to clean up the lobby of Block 1 of Vista Paradiso. He further gave evidence that for the cleaning that was to be done on the day of the accident, at least on his instructions, there was no need for the cleaning workers to work at any height which would require the use of ladders and therefore no ladders for those work was provided by the 2nd defendant for such work. In cross-examination he said that all he did was to tell Chan to inform the workers to clean the pillars on the lobby to as high as their hand could reach. He also said they could use brooms with long handles, which, according to the witness, were part of the equipment stored with other cleaning equipment in the storeroom.

19) Sometime at about 11:30 he was informed by security guards that one of the cleaning workers had fallen down from a ladder in the lobby. He did not see the accident himself and when he went to the lobby, the injured worker had already been taken to hospital by other workers. He then noticed a ladder propped up against a pillar in the lobby. He thought it was a ladder left there by other contractors doing internal decoration works at the units of Vista Paradiso. He did not inspect the ladder.

20) The second witness called by the 2nd defendant was the manager of their Human Resources Department. She obviously was not an eye witness to the accident. Her evidence was to the effect that the plaintiff was not an employee of the 2nd defendant at the material time. She further told the court in evidence that it was long after the accident that the 2nd defendant had employed its own cleaning workers at Vista Paradiso when they had obtained a long term cleaning contract from the management of Vista Paradiso.

21) She further gave evidence of certain measurements relating to the pillar and the ceiling of the lobby of Vista Paradiso which she had taken in August 2001.

22) The only other matter by way of evidence that needs to be mentioned is that during the course of the trial, the 1st defendant had disclosed two documents which had hitherto not been disclosed to any of the other parties. The first document was a Form 2 ( i.e. a notification to the Labour Department of an accident to an employee) which purports to have been filled in by someone of the 2nd defendant relating to this accident and stating on the form that the plaintiff was the employee of the 2nd defendant. There is no evidence that this Form 2 had ever been filed with the Labour Department. The other document purports to have been a statement given by the plaintiff to insurance adjusters.

23) The intervener had attempted to cross-examine Miss Hui of the 2nd defendant and the plaintiff respectively on these two documents but was unable to establish the authenticity of either of these two documents. As no other witnesses were called to prove these two documents in evidence, I did not see fit to attach any weight to the contents of either of them.

Assessment of the evidence

24) The plaintiff is wholly illiterate and quite inarticulate as a person which is understandably so given her lack of education. There were times when it took a number of questions to obtain what should have been a simple answer from her if she had been able better to express herself. Added to this is the further difficulty that she spoke Cantonese with a heavy accent probably from some other parts of China.

25) However, I found her to be a truthful witness doing her best to tell as best she could the actual happenings in relation to her accident and related matters subject of course to being able to remember sufficient details of the matters asked of her.

26) I also accept Miss Hui as a truthful witness and doing her best to tell the court the truth. Her evidence however is not directly relevant to the main issue in dispute in this case.

27) In so far as Mr Kee is concerned, while I can accept much of his evidence as true, there are some parts of his evidence (which I shall deal with below) that I have much hesitation in accepting.

28) I do not accept his evidence that he gave instructions to Chan for the workers to clean "as high as their hands could reach". Firstly I cannot visualize a person when giving instructions to others to do cleaning work would specify the work to be done in such a way. Secondly, such instructions conflict with his further evidence that he told Chan that the workers can use long handle brooms to reach the upper part of the pillars in the lobby.

29) Moreover, I do not accept Mr Kee's evidence that the pillars at the lobby were only dusty and all it needed was a simple dusting by using long handle brooms. I prefer the plaintiff's evidence that the pillars had sand and mud covering it and for that reason it was not possible to clean it by simply dusting away with a long handle broom.

30) It was common grounds that on the day of the accident, residents had not yet moved into Vista Paradiso but that a number of the flats at that place was being internally decorated by a number of different contractors. In those circumstances, it would be more likely that the pillars at the lobby would be dirty in the way described by the plaintiff than as described by Mr Kee.

31) Having said that even though the credibility of Mr Kee is called in question as to certain parts of his evidence, there still remain a complete lack of evidence from the plaintiff that the ladder from which she fell down was provided by the 2nd defendant. In the absence of any evidence from Mr Chan, the only evidence before me on that aspect is still the evidence of the plaintiff that it was Mr Chan who brought this ladder to her for her to use when cleaning the upper part of the pillar. There is simply no evidence as to where or how Mr Chan obtained this ladder from.

32) Although there is no direct evidence to connect the "Mr Chan" referred to by the plaintiff in her evidence with Chan Wai Chau referred to by Mr Kee in his evidence, on the totality of the evidence from both the plaintiff and Mr Kee, I can and do draw the inference that they are one and the same person.

Findings of fact

33) I therefore make the following findings of fact in this case :

(1) The plaintiff was an employee of the 1st defendant on a casual basis to do cleaning work;

(2) The 1st defendant was a sub-contractor of the 2nd defendant in respect of cleaning works to be carried out at Vista Paradiso and pursuant thereto the plaintiff was sent in to carry out such cleaning works by the 1st defendant on 20 October 1998;

(3) There was an arrangement between the 1st and 2nd defendants that the 2nd defendant would provide the cleaning equipment and tools for the carrying out of cleaning works by the workers of the 1st defendant;

(4) On 20 October 1998, the plaintiff was taken to a storeroom by Mr Chan where she obtained a bucket, cloth and rubber gloves to do the cleaning work with. She was not told by Mr Chan to and did not take any long handle broom from the storeroom (irrespective of whether any such broom was available in the storeroom);

(5) The plaintiff was then led by Mr Chan to the lobby of Block 1 of Vista Paradiso where Chan told her to wait for him. Chan then went off and came back later with a wooden folding ladder for the plaintiff's use;

(6) That ladder turned out to have a defective hinge and after lunch that day, while the plaintiff was standing near to the top of that ladder provided to her by Chan, the hinge came loose causing the ladder to collapse and the plaintiff to fall to the ground sustaining injuries;

(7) Mr Chan was himself also an employee of the 1st defendant and was the person delegated the task by the 1st defendant of instructing the workers of the 1st defendant who worked at Vista Paradiso. Mr Chan, referred to by the plaintiff in her evidence, is the same person as Chan Wai Chau referred to by Mr Kee.

(8) For the avoidance of doubt, in the absence of any evidence that the ladder in question was provided by the 2nd defendant, I decline to make such finding as urged upon me by the plaintiff, namely to draw the inference that the ladder was provided by the 2nd defendant.

Liability of the 1st defendant

34) On the facts as I have found, there can be little doubt as to the liability of the 1st defendant.

35) As the employer of the plaintiff, the 1st defendant is under a duty to provide the plaintiff with reasonably safe equipment to carry out her work. This duty is non-delegable. What this simply means is if the 1st defendant failed to provide such equipment or had delegated such a task to some other person to provide such equipment and it turned out that the equipment provided by that other person was defective resulting in or causing injuries to the plaintiff, the 1st defendant, as the employer, cannot escape liability for such injuries.

36) In the present case, the ladder was, on the evidence, obtained by Mr Chan and provided to the plaintiff for her use. Chan, being a servant of the 1st defendant, the 1st defendant will be liable vicariously for acts of Chan.

37) There is no evidence that in providing the ladder which turned out to be defective at the hinge, Chan had taken any steps to ensure that the ladder would be reasonably safe for use by the plaintiff. In any event, since it was the hinge of the ladder which was defective, that could and should have been revealed by a reasonable inspection.

38) The 1st defendant knew or ought to have known that the plaintiff would require a ladder or some other equipment to enable her to work at the kind of height to reach the top of the pillar for cleaning since Chan, the servant of the 1st defendant, appreciated same and thereby obtained a ladder for use by the plaintiff.

39) Nor can the 1st defendant hide behind the arrangement she had with the 2nd defendant to absolve herself from liability since, as stated above, her duty to provide safe equipment to the plaintiff is a non-delegable duty.

40) For these reasons, I find the 1st defendant liable in negligence as the employer of the plaintiff.

Liability of the 2nd defendant

41) Both counsel for the plaintiff and counsel for the intervener submitted that the 2nd defendant should also be liable to the plaintiff for the accident.

42) Their first line of argument was that by the arrangement arrived at between the 1st and the 2nd defendants, it was incumbent upon the 2nd defendant to provide all the equipment for the cleaning works undertaken by the workers of the 1st defendant at Vista Paradiso. That therefore allows me to infer that the ladder was provided by the 2nd defendant.

43) Their second line of argument was that even if I should find that the ladder was not provided by the 2nd defendant, they submitted that the 2nd defendant nevertheless owed a duty to the plaintiff to have provided her with reasonably safe equipment to carry out the cleaning works. The 2nd defendant ought to have foreseen that the plaintiff would require a ladder for cleaning the upper part of the pillar since the upper part of the pillar was some 320 cm (as measured by Miss Hui). By its failure to provide the plaintiff with a reasonably safe ladder, the 2nd defendant caused the plaintiff to have to use a ladder which turned out to be defective. In that way the 2nd defendant was in breach of its duty to the plaintiff and therefore liable to her in negligence.

44) I do not share that view taken by counsel for the plaintiff and the intervener for the following reasons.

45) Firstly, on the evidence before me, there is no evidential basis upon which I could infer that the ladder was provided by the 2nd defendant.

46) Secondly, by submitting that the duty of the 2nd defendant towards the plaintiff to be what they submitted, counsel for the plaintiff and for the intervener was effectively equating the 2nd defendant's duty to the plaintiff to be no different from that of the plaintiff's employer. Here the 2nd defendant was the principal contractor of the 1st defendant, and not the employer of the plaintiff. At most it could only be said that the 2nd defendant had a contractual obligation to the 1st defendant to provide the 1st defendant's workers with the tools and equipment for the cleaning works at Vista Paradiso. That does not establish on the part of the 2nd defendant a duty to the plaintiff to provide her with such equipment. Even if there was such a duty on the 2nd defendant, I know of no law to say that it must have been a non-delegable duty, unlike the case of an employer.

47) In the absence of any evidence to show that the defective ladder was in fact provided by the 2nd defendant, I am unable to see how the 2nd defendant can be liable to the plaintiff in negligence.

48) Finally I should also mention that although occupiers liability was not fully argued in submission, it was pleaded by the plaintiff. The plaintiff did in submission lightly touch on this aspect of the case by saying that the 2nd defendant must have control over the premises by reason of the cleansing contract it obtained from the management of Vista Paradiso. Even if that was so, on the evidence as found by me, the cause of the accident was due to the defective ladder. This is not a case relating to dangerous premises or a danger on the premises, rather it is a case concerning defective or dangerous equipment brought along or provided by Mr Chan (for whom the 1st defendant must be vicariously liable). Therefore I am of the view that this is not a case of occupiers liability.

49) For the reasons given, I find that the plaintiff has not established liability against the 2nd defendant.

Decision

50) There will therefore be judgment in favour of the plaintiff against the 1st defendant in the sum of $850,000.00. The plaintiff's claim against the 2nd defendant is accordingly dismissed.

Costs

51) There will be a costs order nisi as follows:

(a) The plaintiff's costs of this action be paid by the 1st defendant, such costs to be taxed if not agreed;

(b) The costs of the 2nd defendant in defending the plaintiff's claim be paid by the plaintiff to the 2nd defendant and to be taxed if not agreed;

(c) The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.