POON HAU KEI v. HSIN CHONG CONSTRUCTION CO LTD AND OTHERS

CACV 167/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.167 OF 2002

(ON APPEAL FROM HCPI 1333 OF 1998)

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J U D G M E N T

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Hon Rogers VP:

1. I agree with the judgment of Ma JA.

Hon Le Pichon JA:

2. I have had the advantage of reading in draft the judgment of Ma JA. I agree with his judgment and the order that is proposed to be made.

Hon Ma JA:

The plaintiff's claim

3. This is an appeal by the 1st defendant from the Judgment of Deputy Judge Fung dated 22 January 2002.

4. On 5 January 1996, while working at a construction site located at the KCRC Kowloon Station at Hung Hom, the plaintiff, a scaffolding worker, suffered injuries from a fall. At the time, he was working on Platform 5 in the Station. He sustained fractures to his left femur, left zygomatic bone, left calcaneus and the L-1 vertebra. He was taken to Queen Elizabeth Hospital for treatment.

5. That day, the plaintiff and three other workers were in the course of removing some steel wires that had been used to suspend a bamboo scaffold platform. The platforms had been erected so that work could be carried out to install a fire services system at the Station.

6. The learned judge described the scene where the accident took place in the following terms:

"2. The site in question was Railway Platform No.5 of the Kowloon Station. Fire services system was to be installed at the ceiling above the railway platform. The ceiling was 8.15 m or 26.7 ft above the railway platform. At some stage, two suspended scaffold platforms were constructed above Platform No.5. They were constructed with bamboo poles overlaid with wooden planks and suspended by steel wires from the ceiling. The upper scaffold platform was constructed by the 3rd defendant at the instruction of the 2nd defendant.

3. As at January 1996, the upper scaffold platform had been dismantled, leaving only the steel wires hanging from the ceiling. The 3rd defendant sent workers to have such wires removed. The lower scaffold platform was still being suspended from the ceiling. The distance between the lower scaffold platform and the ceiling was 3.75 m or 12.3 ft., and it was 4.4 m or 14.4 ft above the railway platform. Along the edge of the railway platform was a line of fluorescent light trough hanging 2.5 m or 8.2 ft above the railway platform (see photographs in Agreed Bundle (AB) p.20). The light trough was about 1 ft in width. The distance between the fluorescent light trough and the lower scaffold platform was 1.9 m or 6.6 ft (see sketch in AB p.606). The fluorescent light trough extended beyond the edge of the lower scaffold platform (see photographs in AB pp.21-22)."

7. We have also been provided with a sketch plan of this location, as well as photographs which were taken subsequent to the accident. I would only add the following features to supplement the description of the scene by the learned judge:-

(1) The lower scaffold platform (and one might imagine also the upper one) was a very large structure which must have gone quite some length above the railway platform.

(2) The fluorescent light trough ran longitudinally above the railway platform and was, as the judge said, only 1 foot wide.

(3) The area on the railway platform below the light trough was next to the edge of the platform, beyond which were the railway tracks. It is not entirely clear what was the height of the railway platform level above track level, but this does not perhaps matter.

8. As found by the judge, the 1st defendant was the principal contractor of the construction site, the 2nd defendant the fire services subcontractor and the 3rd defendant, the scaffolding subcontractor engaged by the 2nd defendant. The judge found, despite the 3rd defendant's denial, that he had employed the plaintiff.

9. On 29 December 1998, the plaintiff issued a writ against all three defendants. In the Statement of Claim (which by the time the action was tried, had been re-amended), it was pleaded that the plaintiff sustained his injuries after falling off a ladder when in the course of pulling out wires that had become entangled on the edge of what must be a reference to the lower scaffold platform. The height of the ladder was said to be 11-12 feet and it was further pleaded that the plaintiff had stood on the top part of the ladder. Paragraph 3 of the Re-Amended Statement of Claim states as follows (the deleted parts of that amended paragraph are omitted):-

"3. On 5 January 1996, the Plaintiff was in the course of employment working at the said site. The Plaintiff was instructed to remove some hanging metal wires each of about 10 feet in length from the ceiling with three co-workers. The wires had been used to hang up another bamboo scaffold and were still attaching to the ceiling after the bamboo scaffold had been removed. The Plaintiff and three co-workers started working at about 10:30 a.m. The three co-workers went up to the working platform on the scaffold to remove the wires while the Plaintiff carried out some other preparation work on a passenger platform (Platform No. 5). By around 11:45 p.m., the Plaintiff had collected and packed up the wires which had been removed from the ceiling and threw down onto the Platform No. 5 by the three co-workers. However, the Plaintiff found that some wires were entangled on the edge of the working platform. Without any other alternative device provided, the Plaintiff fetched a trestle ladder of about 11 to 12 feet in height nearby and set it up below the area where wires were entangled. The Plaintiff climbed up and stood on the top part of the ladder pull out the entangled wires. When he started pulling the wires, the Plaintiff lost balance, slipped and fell down from the top of the ladder onto the edge of the railway platform some 15 to 16 feet down and further fell onto the railway and sustained serious injuries."

10. The plaintiff alleged against all three defendants that the accident as just described was caused by their negligence, breach of statutory and common law duties and, on the 3rd defendant's part, its employment contract with the plaintiff as well.

11. In its Re-Amended Defence, the 1st defendant pleaded, first, that the accident occurred while the plaintiff was climbing up a step ladder to remove some wires, alternatively that he fell off while receiving wires when he was located on top of the fluorescent light trough. There was a denial of liability and a further plea of contributory negligence on the plaintiff's part. The 1st defendant had no witnesses to the accident. The light trough version came about as a result of a statement that the plaintiff gave to the 1st defendant's safety officer (Mr Yuen Chi Kwong) on 6 January 1996 when he was in hospital. This statement (which for convenience I will call "the 6 January Statement") features prominently in this case.

12. There was no Reply filed by the plaintiff. Contribution Notices were served by the 1st defendant on the other defendants.

The trial

13. The action was tried over the course of 11 days in December 2001. Judgment was handed down on 22 January 2002.

14. Throughout the trial, the plaintiff ran his case on the basis that the accident occurred in the way pleaded in the Re-Amended Statement of Claim, namely, that he fell off while working on a ladder. This is clear from the transcript of the evidence provided to us and from the Judgment itself where the plaintiff's case is set out.

15. At no stage of the trial did the plaintiff accept that the accident took place while he was on top of the fluorescent light trough. He asserted that the 6 January Statement did not represent the truth and denied its contents. Various allegations were made against Mr Yuen Chi Kwong which were rejected by the judge.

16. For the 1st defendant's part, it is clear from the transcript that most of the cross-examination of the plaintiff proceeded on the basis of the plaintiff's allegations of negligence arising from his version of events. I accept that there was some cross-examination in which it was put to the plaintiff that the 6 January Statement was true and that the accident occurred when he was on the light trough. However, as Mr Patrick Lim (who appears before us as well as in the court below) puts it, this was so as to discredit the plaintiff's version of events.

17. In view of the plaintiff's insistence that he was on a ladder, and not on the light trough, Mr Lim was unable to develop any lines of cross-examination based on the latter scenario. There was, however, extensive cross-examination based on the ladder scenario. For example, there was a debate over the necessity or wisdom of the plaintiff standing on top of the ladder when he could simply have stood on a lower step given his height and reach. Matters were gone into such as the extent to which wires were dangling above him from the lower platform scaffold and the positioning of the ladder being directly underneath the dangling wires. He even provided a physical demonstration of how he was on the ladder.

18. As I have said, Mr Lim was unable to pursue any lines of cross-examination in relation to the light trough version. It would have been pointless for him to have done so. All he could do really was to try to discredit the plaintiff by putting to him the alternative version (as well as other versions he had given in various other statements). I shall return to this aspect presently.

The Judgment

19. The judge disbelieved the plaintiff's version of events. He held that the accident did not occur when the plaintiff fell off a ladder. Instead, he held that the version contained in the 6 January Statement was accurate and that he had therefore fallen off the light trough. Paragraph 42 of the Judgment was in these terms:-

"I find that DW1 [Mr Yuen Chi Kwong] is an honest witness in relation to the circumstances of the taking of the statement dated 6 January 1996. I find that the plaintiff did sign it while fully aware of its content. I find what was recorded in the statement was true to the plaintiff's own knowledge. I also accept DW1's oral evidence as to what the plaintiff had told him as the course of the accident. Hence, I find that the plaintiff had climbed onto the top of the fluorescent light trough to retrieve a dropped wire and had fallen therefrom as opposed to falling off the ladder."

20. However, the judge then went on to consider the liability of each of the defendants on this alternative scenario, even though the Re-Amended Statement of Claim did not plead a case on this basis. The judge said this in paragraph 43 of the Judgment:-

"I note that the plaintiff has only pleaded falling off a ladder and not falling from the fluorescent light trough as an alternative as it has been denied vehemently. Nevertheless, it has been the pleaded as an alternative in the Re-Amended Defence of the 1st defendant. The matter was fully canvassed in evidence and submissions by the parties. There is no prejudice to any one. The fact that the plaintiff did not explain how he got onto the fluorescent light trough was entirely of his own making. I shall proceed to consider the liability of each of the defendants on this basis."

21. All three defendants were found liable. The 1st defendant was found liable on the basis of a breach of the common law duty of care. The 2nd and 3rd defendants were held similarly liable (the 3rd defendant was found also to be in breach of statutory duty).

22. In terms of contributory negligence, the judge assessed this at 25%. As for the contribution between the defendants, he apportioned this at 50% for the 3rd defendant, 25% each for the 1st and 2nd defendants. Quantum was assessed at $2,517,387.00 (this taking into account the 25% contributory negligence) less another $935,336.20 being the amount the plaintiff received under the Employees' Compensation Ordinance. Interest was also awarded. As to costs, the judge held that the plaintiff should only be entitled to 3/4 of his costs of the action and his own costs were also to be taxed in accordance with the Legal Aid Regulations.

The critical issue on appeal

23. By a Notice of Appeal dated 25 February 2002, the 1st defendant appealed the judge's findings on liability, contributory negligence and costs. The other defendants did not appeal. For his part, the plaintiff has served two Respondent's Notices seeking not only to uphold the judgment against all three defendants on the basis of breach of statutory duty, common law duty and negligence, but also a variation of the contributory negligence assessment and of the costs order.

24. A number of grounds are raised in the Notice of Appeal and the Respondent's Notices. It is necessary for the purposes of resolving the present appeal to refer to only one of these.

25. The 1st defendant says this. The plaintiff's pleaded case and the way that the trial was conducted on his behalf, were only on the basis that the accident to the plaintiff occurred when he fell off a ladder. In view of the judge's finding (from which there is no appeal by the plaintiff) that this was untrue and that the light trough scenario was the correct one, it is contended that he should simply have dismissed the plaintiff's claim in its entirety. It is said that the judge was wrong in the circumstances to have considered the issue of the 1st defendant's liability on the alternative scenario.

26. The plaintiff submits that the judge was correct to have considered the 1st defendant's liability on the basis of the light trough scenario. Not only was this aspect raised in the pleadings (specifically in the Re-Amended Defence of the 1st defendant) the 1st defendant's counsel had cross-examined on this basis and therefore all the facts necessary to reach the findings it did, were before the court.

27. This issue can be distilled into the following question:- Was the judge correct in proceeding (and finding liability against the 1st defendant) on the basis of a version of facts which was different to that advanced and pleaded by the plaintiff, or should he in the circumstances have dismissed the claim?

28. I regard this as the critical issue in the present appeal and in view of the conclusion I reached on it, it becomes unnecessary to consider the other grounds of appeal contained in the Notice of Appeal or the issues raised in the Respondent's Notices.

Determination of appeal

29. In my view, the issue identified above should be resolved in favour of the 1st defendant and the appeal allowed.

30. The way in which the plaintiff proceeded in this action was to put forward a version of the accident based solely on the ladder scenario and proceed from there with allegations of negligence and breach of statutory and other duties. It was no part of his case whether as pleaded or, more importantly, as his own testimony and evidence, that the accident happened while he was on the light trough.

31. Accordingly, the 1st defendant's focus in the conduct of the trial (and this is borne out by the transcript as well as its written submissions at trial) was on the ladder allegation. As I have mentioned, Mr Lim cross-examined the plaintiff on the premise that he was on the ladder. It is of course correct that he did also put to the plaintiff that the accident took place when he was on the light trough, but, as I have said, this was really to try to discredit his version of events. He could not cross-examine the plaintiff on the basis that he was on the light trough. It would have been futile and indeed absurd to have done so when the plaintiff was so adamant that he was not on the light trough.

32. In the circumstances of this case , it was in my view wrong of the learned judge, once he had rejected the ladder version of events, to have gone on to consider whether liability could be established against the 1st defendant under of the light trough scenario. I say this principally for the following reasons:-

(1) The court could not have had fully before it all the facts that it would have had (if the case had been run on this alternative basis), to enable it to arrive at a considered view on the liability of the 1st defendant.

(2) In particular, it would have been important to have had the plaintiff's version of exactly what had happened under the light trough scenario and what his testimony would have been when tested by cross-examination.

(3) As a matter of justice to the 1st defendant, it was entitled to test the plaintiff's version by cross-examination.

33. Mr Ruy Barretto SC for the plaintiff, submits that the learned judge had all the necessary facts before him to make a finding of liability against the 1st defendant based on the light trough scenario. If after a trial in which this issue had been properly raised and fully ventilated, all that remained were the facts that were actually before the judge in the present case, he may arguably be right. However, that was not the position in this case at all.

34. The issue of the 1st defendant's liability on the basis that the plaintiff was on the light trough was not raised by the plaintiff at any stage of the trial. Indeed, in the plaintiff's written final submissions, although there is a brief reference to the 1st defendant's liability under the light trough version, this is nowhere developed. On the contrary, it was stated in those written submissions that essentially, the whole case boiled down to the simple question which of the two versions the court should accept. The plaintiff's case was put firmly on the basis that not only had he not walked on the light trough but that he had never seen anybody else walk on it. The following was also stated in these written submissions:-

"It is obvious that climbing up to the light hanger and walking on it are unreasonable conduct. If the alternative scenario as suggested by D1 is found by the court, then P had acted unreasonably and there may be some degree of negligence. However, as that scenario is so unlikely in the light of the evidence, we submit that the Court does not even need to trouble itself to consider this issue."

35. With respect, this approach of counsel for the plaintiff in the court below (Mr Andrew Li who appears with Mr Barretto), was correct. Mr Barretto seemed to suggest that all the plaintiff needed to do was to amend the Statement of Claim to incorporate the light trough version. If this had been done at trial, and even if the amendment had been allowed by the judge, the plaintiff would then have been put to an election as to which factual version of the same event he was going to advance. Of course, a party can generally plead and run cases in the alternative, but where he seeks to advance two entirely different factual versions in relation to the same event, he will almost invariably be required to elect which version he is going to advance. This approach is consistent with considerations of justice to the parties and proper trial management. It may be different where a party does not really know what happened or in a res ipsa loquitur situation.

36. In the present case, of course, there was no application by the plaintiff to amend the Statement of Claim and in his evidence, he was certainly not advancing two versions of the same event. As I have said, Mr Lim proceeded to cross-examine the plaintiff on the basis of the ladder version, only putting to him that the light trough version was the right one to test his credibility. He could not and did not cross-examine on the basis that the light trough version was true or was the plaintiff's case.

37. Accordingly, it seems to me that it would be unfair then to have considered the question of the 1st defendant's liability in the light of a version of events different to that advanced by the plaintiff at trial. If the plaintiff had advanced the case based on his having fallen from the light trough, the following facts and matters would have been among those explored at trial, especially in his cross-examination:-

(1) The plaintiff would have been cross-examined on the reason why he needed to go on the light trough in the first place. Quite apart from his instructions (which were arguably just to remain on the railway platform), it would have to be established just what he was doing on the light trough. It will be remembered that in his pleading, the plaintiff says that he needed to pull down some wires that had been entangled in the lower platform scaffold. However, in the 6 January Statement, it was stated that he was on the light trough to receive wires from his co-workers. The judge in the passage from the Judgment set out in paragraph 19 above, while accepting that what was in the Statement was true, said, "Hence, I find that the plaintiff had climbed onto the top of the fluorescent light trough to retrieve a dropped wire and had fallen therefrom as opposed to falling off the ladder".

(2) Thus, the question of any negligence or breach on the 1st defendant's part would have had to be considered against just what task the plaintiff was attempting to perform while standing on the light trough.

(3) If he was merely picking up a wire or wires that had dropped onto the light trough itself or were somehow dangling or overhanging from it, the question would arise whether he ought then merely to have used a ladder to remove the wires. It will be remembered from the judge's description of the scene that the light trough was some 8 .2 feet above ground. Given the plaintiff's height (5 feet 4 inches) and reach (6 feet 3 inches), the use of a ladder might well have been a safer course to have taken.

(4) In this respect, in the cross-examination of Mr Yuen Chi Kwong by the plaintiff's counsel, he said that the use of a ladder to retrieve wires constituted "totally acceptable procedures". I also draw attention here to Regulation 38B of the Construction Sites (Safety) Regulations under the Factories and Industrial Undertakings Ordinance Cap 59 which states:

"Without prejudice to the other provisions of this Part, where work cannot safely be done on or from the ground or from part of a building or other permanent structure, the contractor responsible for the construction site concerned shall provide, place and keep in position for use and properly maintain either scaffolds or, where appropriate, ladders or other means of support, all of which shall be sufficient, strong and suitable for the purpose."

(5) Mr Barretto submitted that although there was a ladder or ladders available at the site, an unmanned ladder would not constitute safe practice. There is no evidence (as I am sure there would have been if this issue had been explored) of whether the plaintiff could have asked one of his co-workers to man any ladder he might have used or whether given the height of the light trough, any ladder that the plaintiff may have used would need to have been manned in the first place.

(6) So far, I have only speculated on the possibility that the plaintiff was on the light trough to pick up wires that had dropped there. If he had been on the light trough to retrieve wires from the lower scaffold platform (which was his pleaded case), then the question would arise why he did not ask one of the other workers to retrieve them instead of going on the light trough himself.

(7) If, as the 6 January Statement suggests, he was on the light trough to receive wires, then no doubt questions would have been raised as to why he chose to adopt what must arguably be a dangerous method, namely, to remain on the light trough for a lengthy period of time. He could, instead, simply have asked his co-workers to throw the wires to the railway platform.

38. I have referred to just some of the matters that would have been explored had the plaintiff advanced the light trough version of events instead of running the ladder scenario which the judge rejected. There are no doubt many other instances to demonstrate that the whole approach to the case would have been completely different.

39. Mr Barretto laid much emphasis on the judge's finding that the use of a movable working platform would have constituted a safe system of work. In paragraph 54 of the Judgment, the judge said in relation to the 1st defendant's liability:-

"The fluorescent light trough was hanging 2.5 m or 8.2 ft above ground and there was no permanent structure to allow safe access to or egress from it. There was a scaffold platform but it was 1.9 m or 6.6 ft above the fluorescent light trough, and hence not a suitable platform to reach the light trough. No suitable ladder or movable working platform or other means of support was provided to the plaintiff. The light trough itself was only 1 ft wide and itself was not a suitable platform. Although a safety belt was provided, there was suitable anchorage point on top of the fluorescent light trough. Hence, I find that the 3rd defendant was in breach of the statutory duty as mentioned above."

40. In my judgment, the judge fell into the same error that permeated Mr Barretto's arguments, namely, that he looked at the evidence that was before the court without considering how much more evidence there would have been available or elicited in cross-examination had the plaintiff advanced a case based on the light trough scenario from the very beginning. In adopting this approach, the judge had found against the 1st defendant without having afforded it a fair opportunity to deal with this new version of events. For example, the use of a movable platform may well have represented a safe system of work, but its absence was not necessarily equivalent to negligence or breach of duty, had the full facts emerged.

41. In circumstances where the version of events as pleaded or advanced by a party is found not to be accurate or true, and another version is held to represent the true position, a court must be careful when asked to make a finding of liability (or some other legal consequence) based on this other version. Before attempting to do so, the court must first be satisfied that the issue has been properly put before it and identified so that the other party becomes fully aware of the case he has to meet. This is usually done by the matter being made clear in the pleadings. Next, the court must also be satisfied that the 'new version' is one that the other party has been given a full opportunity to deal with. Both elements must exist before a court can then proceed to make a finding of liability or some other legal consequence based on the 'new version'. There may of course be other considerations as well, but these two are usually the most important.

42. In dealing with the situation I have just identified (which is the position in the present case), the court may ask itself questions such as:-

(1) Is the so-called 'new version' a radical departure or merely a variation, modification or development of an issue that is already before the court? and

(2) Would the other party's preparation or conduct of the case have been different if the "new version" was the one that it had originally come to the court to meet?

43. I have found useful the decisions of the English High Court in Waghorn v George Wimpey and Company Limited [1969] 1 WLR 1764, at 1771B-G and of the English Court of Appeal in Soar v National Coal Board [1965] 1 WLR 886, at 890E-F.

44. Mr Barretto attempted to argue that the light trough version was merely a modification of the plaintiff's real case and, implicitly, that the 1st defendant was therefore not prejudiced. For the reasons I have already gone into, I do not share this view. If the plaintiff had wished to run a case based on the light trough version, this should have been pleaded. In an action for personal or fatal injuries, the way an accident has occurred is a material fact that has to be pleaded, if nothing else to inform the other side of the case he has to meet at trial. As to the function of a properly particularised pleading: see Hong Kong Civil Procedure 2002 Volume 1 at paragraph 18/12/1. Certainly, the plaintiff should have made clear from the outset when opening his case that this was his true case. In case it is thought that this is a mere pleading point, it is not. The whole direction of the case and the 1st defendant's conduct of it would have been quite different had the trial proceeded on the basis of the light trough version. Before us, Mr Barretto sought leave if necessary to amend the Statement of Claim once more to plead the light trough version of events. As I have said, the fundamental objection to his case is not a matter just of pleadings.

45. It is true that in its Re-Amended Defence, the 1st defendant did advance the light trough version, but this was merely to plead contributory negligence on the plaintiff's part. This constituted no admission that the accident happened that way or, more important, that the 1st defendant was prepared to face a case on negligence or breach of statutory duty run by the plaintiff based on this version of events.

46. The matters I have dealt with at some length are enough to dispose of the appeal. In short, as a matter of justice to the 1st defendant, the plaintiff's claim should have been dismissed once the judge rejected the plaintiff's version of events. Mr Barretto referred to the justice of the situation from the point of view of his client. Here, I would perhaps point out the following:

(1) The plaintiff could have come clean right from the start.

(2) In the 6 January Statement, he said he was "careless" when he fell.

(3) During cross-examination by Mr Lim, the plaintiff said this:

"Q. Do you accept that - I know you say you didn't do it - but if a workman climbs onto the light hanger to do his work, he's got no right to be there? That would be gross misconduct.

A. Agree."

(4) This might perhaps explain why his counsel in the written final submissions seemed to accept that, "it is obvious that climbing up to the light hanger and walking on it are unreasonable conduct".

Outcome of appeal

47. For the above reasons, I would allow the appeal and order that the plaintiff's claim be dismissed. As to costs, I would make the following costs order nisi: the plaintiff do pay the 1st defendant's costs of this appeal and of the action in the court below, such costs to be taxed if not agreed. The plaintiff's costs are to be taxed in accordance with the Legal Aid Regulations.

Rogers VP:

48. There will therefore be an order in terms of paragraph 47 above.