LAU WING SHING v. CHUNG FAT MECHANICAL WORKS CO AND ANOTHER

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J U D G M E N T

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Cons, V.-P.:

1. This is an appeal from the judgment of Liu, J. given on the 1st April this year.

2. In January 1983 the Plaintiff was a welder employed underground by the 1st Defendant who was himself a sub-contractor engaged by the 2nd Defendant. The Plaintiff had been so employed for some two months when, on the 19th of that month he was, as the judge found, disconnecting electric cables from what has been called a welding machine - which appears to be some kind of transformer, - he was struck by a locomotive passing along a railway track running close by in the same tunnel. He received severe injuries to his spine.

3. The judge found both Defendants liable. He assessed total damages at $600,645 and various amounts of interest thereon. At the same time he reduced the damages by 65%, the extent to which he assessed the Plaintiff had been contributorily negligent.

4. It is against that reduction that the Plaintiff appeals and also as to certain particular aspects of the assessment of the damages themselves.

5. It would seem from the evidence to which Mr. Litton, who appears here, but not below, for the Defendants has directed our attention, that the Plaintiff had probably already disconnected the cables at the time that he was actually struck, and was in the act of gathering them up from where they had presumably fallen at the time of the disconnection. With respect I see no significant distinction. What is important is that the circumstances in the tunnel and around the welding machine were such that in order to carry out his instructions the Plaintiff was forced to crouch down in an extremely narrow space between the welding machine and the railway track where he was then in danger of being struck by any of the locomotives which passed that spot from time to time. The judge found specifically that that was an unsafe place to work. At the outset of the appeal yesterday morning we refused to admit the Respondents' Notice which sought inter alia to challenge that finding. That does not mean of course that the Plaintiff was entitled to abandon all considerations for his own safety.

6. Evidence was given for the Defendants that in general a locomotive and its attendant trucks would make sufficient noise for it to be heard some 30 meters away despite the other noises attendant upon the drilling at the tunnel face. No evidence was given as to the conditions at the exact time of the accident but there is no reason to think that the situation was then other than normal. In addition the locomotive carried two head lamps of intensity similar to that of an ordinary motor car, a small red light and a revolving light on its top. It was said to have been visible from some 100 meters away.

7. The judge felt that in those circumstances had the Plaintiff given proper consideration to his own well being he would have been aware of the presence of the oncoming locomotive in ample time to avoid being struck. He took the view that the Plaintiff's own degree of negligence was extremely high.

8. With respect to him it seems to me that he overlooked one important fact, namely that the locomotive which struck him had come out of a compression lock which was certainly not more than 12 meters away from where he was crouched. It may have taken the locomotive a little more than the "something less than 5 seconds" which Mr. Mills-Owens, who appears for the Plaintiff here but likewise not below, estimated in accordance with its maximum speed of 5 miles an hour, because it would have come from a standing start. Nevertheless it was a very short distance. Furthermore it must not be forgotten that at all times there was also the possibility that a locomotive might have come from the other direction.

9. What is required of a workman with regard to his own safety will depend upon the particular circumstances of his work. I would respectfully adopt the comments of Lord Atkin in his speech in Caswell v. Powell Duffryn Associated Collieries Ltd.⁽¹⁾ where he said -

".....I am of the opinion that the care to be expected of the plaintiff in the circumstances will vary with the circumstances and that a different degree of care may well be expected from a workman in a factory or a mine from that which might be taken by an ordinary man not exposed continually to the noise, strain and manifold stress in factory or mine.

10. It is not difficult to envisage the conditions in that tunnel of compressed air, with its constant noise of drilling at the work face and other machinery. They cannot have been conducive to calm and deliberate reflection before the undertaking of any particular individual act.

11. Mr. Mills-Owens has alse drawn our attention to several cases which might be said, very broadly speaking, to indicate a principle that a workman should not be judged too harshly for momentary inattention to his own safety where the employer is basically at fault.

12. Mr. Litton has argued that any such principle is confined, as were the cases quoted, to duties imposed upon the employer by statute rather than by common law principles of negligence. With enery respect I do not think that argument can stand in the light of the comments, in particular those of Lord Atkin and Lord Wright, in the Caswell case⁽¹⁾, but in any event I am not sure that the cases brought to our attention were in fact any more than specific applications of the general principle enunciated by Lord Atkin and which I have just quoted. The very height of the figure decided upon by the judge below leaves me to think that in coming to his conclusion he must have overlooked the approach suggested by Lord Atkin. But to be fair to him, neither Caswell⁽¹⁾ nor the other cases to which we have been referred, were specifically drawn to his attention.

13. In my view the assessment for contributory negligence was far too high. There is, as is so often the case, room for reasonable disagreement as to what exactly it should have been, but after discussion with my brothers I am satisfied that the proper figure should be one of 20%.

14. I turn then to the quantum aspect, as to which three complaints were made.

15. The first complaint relates to a difference of $20 per day in the wages received by the Plaintiff at the time of the accident. In the Statement of Claim they were put at a monthly figure which would give a rate of approximately $230 per day. That was denied in the Defence, which first averred a basic rate of $160 per day with a $40 underground allowance. It was then amended on the opening day of the trial to a basic rate of $100 per day with an $80 to $90 underground allowance.

16. In evidence the Plaintiff supported a total of $200 per day. That was also the figure contained in a form completed by the 1st Defendant at the time of the accident, as required by the regulations of the Labour Department. The 1st Defendant, the Plaintiff's employer, in his evidence, reverted to the $160 basic with allowance of $40 position, but with this difference, that the $40 was a maximum; the exact allowance depended upon the hours worked underground on any particular day, and in general the allowance for the Plaintiff had been only $20 per day.

17. The 1st Defendant's evidence was presumably accepted by the judge in preference to that of the Plaintiff, and of the form filled in at the time of the accident. He does not explicitly say so. The reasons given in explanation of the particulars of the award of damage are scanty. It apears that the judge was presented by counsel with respective schedules suggesting how the award should be compiled, and with one exception that I shall mention later, he preferred that of the Defendants.

18. The correct rate of pay was purely a question of fact, dependent largely upon the credibility of the respective witnesses. In those circumstances this Court normally would be very slow to interfere. But as I have just observed, the figure of $200 per day was specifically put before the Court in the Defence and, by the amendment on the opening of the trial, specifically reaffirmed. The 1st Defendant was of course at liberty to give such evidence as he thought fit, but variation from a figure so deliberately put forward is a matter of very great importance and one which the judge does not mention, and therefore, I fear, overlooked. The evidence of the Labour Department form is cogent, and I would, for my part, increase the appropriate award according to the figure there quoted.

19. The second complaint concerns a period of time which commenced from the time when, after the accident, the underground work ceased, and extended until the hearing of the trial itself. It is common ground, I think, that the correct rate to form the basis for this period is the average between the general rate payable to welders in general at the beginning of the period and the rate payable at the end.

20. The judge accepted from evidence given by an officer of the Census and Statistics Department that the general rate for a welder at the end of that period was $180 per day. In doing so he implicitly rejected the evidence of the 1st Defendant that it was only $130, the rate which the 1st Defendant said he was still then paying his own workers.

21. The schedule of damages handed in on behalf of the Defendants must have been based on $130. The judge, very correctly, amended it with regard to the post hearing damages, but he failed to notice that a similar amendment was necessary with regard to the period that I am concerned with now.

22. Mr. Litton has suggested that there was no need to amend, that the failure to do so was a conscious act on the part of the judge by reason of the Plaintiff's evidence that it had been his intention, but for the accident, to stay working for the Plaintiff regardless. He relies on the Plaintiff's evidence which appears at page 87 of the Appeal bundle -

"Q.     Is it your intention to work as a welder for the defendant on a long term basis but for the accident - I mean had there not been an accident?

A.     Yes.

Q.     What if the 1st defendant no longer provides you as frequently as at time of accident with welding work undertaken in compressed air situation, would you still stay with defendant?

A.     I still have to do the work. It is the same working here or there."

23. I am not prepared to accept that suggestion. The last answer I have quoted indicates that the Plaintiff would have been willing to continue working for the 1st Defendant even though the higher paid underground work was not available, but I find it impossible to accept that he would have done so all this time if another firm providing similar work would have paid him a much higher figure.

24. The last complaint relates to mitigation of damages. The judge said -

"Assuming the Plaintiff to be able to find sedentary work 18 months after the accident as suggested by Dr. Horsfall, he would have been able to earn $2,187.64 in June 84 (say $2,000)."

He was there speaking of pre-trial loss of earnings, but he carried a similar figure into the post-trial loss of earnings. The figure of $2,000, and later slightly more, was based on the average monthly salary, including fringe benefits, of a watchman, excluding watchmen employed in a bank, taken as at June 1986. Deductions from the damages were made accordingly.

25. I take the judge's finding to mean that the Plaintiff could, and therefore should, have found employment of that or similar kind. There is no doubt that he could have done such work. The report of Dr. Horsfall was that -

"Up to 18 months after the accident is a reasonable period to allow for treatment and recuperation. After this Mr. Lau possibly could have undertaken some light on part-time work."

26. There is however no evidence whatsoever that he could have obtained such work. He gave evidence that at one stage he helped a friend in some hawking and thereby earned some $2,000. But otherwise his evidence was to the effect that he was unable, despite trying, to find any work at all, and that indeed, on one occasion when he approached an employer for the job as a watchman, he was rejected at the interview.

27. Mr. Litton suggests that the judge was entitled to adopt a commonsense approach to the situation, and by applying his own knowledge of the conditions of the labour market would necessarily have found that the Plaintiff could have obtained such a job. It is well known that positions are available.

28. With respect I do not think the judge is so entitled. Where a matter of fact is "notorious" a judge is of course able to rely on it without further proof. But I am not willing to accept the conditions of the labour market into that category. Evidence needs to be called. My Lord Hunter remarked during the course of argument, quoting from fairly recent experience, that officers from the Labour Department are commonly called in this regard, and in particular, from a special unit of that Department which deals with workmen who have been injured.

29. The Plaintiff has through counsel, at the trial and again before us, conceded that an amount of $1,800 per month might be set off against loss of future earnings as representing the Plaintiff's residual earning capacity for the future. For my part, I would limit the deduction for failure to mitigate the damages to that figure.

30. For these reasons, I would allow the appeal and vary the award of damages according to the remarks I have just made.

Hunter, J.A.:

31. I agree that the appeal should be allowed for the reasons and to the extent given by my Lord. The effect of that decision is that the damages calculation is now correctly set out in the schedule to Mr. Mills-Owens' skeleton argument. The 100% calculation comes out at $842,705 instead of the figure arrived at by the trial judge. On my calculation which I sincerely hope someone will check, one-fifth of that 20% contributory negligence is $168,541 producing a net award of $674,164.

Hooper, J.:

32. I also agree that the appeal should be allowed. As had been made clear by my Lord Cons, I agree to the apportionment of liability in respect of the Plaintiff's contributory negligence. I also agree with my Lords with regard to the quantum of damages.

(1) [1940] A.C. 152 at p.166