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

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. Some time at the end of 1982 and the beginning of 1983, the Plaintiff found himself in the employment of the 1st Defendant, who was a sub-contractor of the 2nd Defendant. The Plaintiff had been working for the 1st Defendant for about 2 months and a day, when he was injured on the 19th January 1983 in an accident. He was then nearly 23. In the accident, he was struck by a locomotive capable of travelling at approximately 5 miles per hour. The Plaintiff was thrown against an object. He was helped into the decompression chamber before he was taken to hospital. He has since had two operations to relieve, in the main, pain in his back and left leg. As Doctor Mo described quite graphically, he had two severe operations, one in front and one in the back, for correcting a prolapsed disc. The Plaintiff had a fairly long period of convalescence, wearing at one time a corset. During his first operation in June 83, certain dye by the name of myodil was injected into his system. The presence of the dye has since caused irritation, so Dr. Mo suspected, resulting in painful attacks several times a week in his back and left leg. He displayed agonizing moments in the course of his evidence. He appeared in the witness stand to be in lack of stamina and the usual enthusiasm of a normal man. He can sit for about 15 minutes and then he has to stand. He can stand for about half an hour; then he has to change his posture. He cannot carry more than 30 pounds. He has been assessed by the majority of medical opinion as suffering from a 15% loss of earning capacity which I accept. He suffers from limitations in motion. He bends forward 60^o instead of 90^o and backwards 20^o instead of 30^o. His left big toe is not functioning properly. He is not expected to likely recover any further. However, possibility of some recovery has not been totally ruled out.

2. On the day of the accident, the Plaintiff was doing welding in the tunnel. He was instructed by his employer to detach electric cables from a welding machine at the end of his chores. As instructed, he approached the welding machine which is 18" high, 14½" deep and 20" wide. The welding machine was placed somewhere about 10' - 20' or some 6 meters from the bottom of the staircase in the tunnel. The Plaintiff explained to the Court that the connections from which he had to detach the cables were facing the locomotive tracks running along the tunnel. The Defendants gave a different version. They explained to the Court that in fact the welding machine was placed in such a way that the connections on the shorter 14½" side were pointing to the tunnel face rather than facing the locomotive tracks. The Defendants, through Mr. Chin, as well as Mr. Karube, explained to the Court that in addition to saving of space, it would be inconvenient and dangerous to have the connections pointing towards the tracks for fear of reducing the passageway between the tracks and the welding machine and causing electric shock and injury to workmen using it.

3. It does not matter much, in fact, where the welding machine connections were facing, but I accept the evidence from Mr. Chin and Mr. Karube. The Plaintiff has demonstrated, on quite a number of occasions, not to have a clear or good recollection of the accident and the incidental particulars. I said, it matters not in which direction the welding machine was in fact installed because the difference between the Plaintiff's version and the Defendants' version would mean a gap of either 21" or 26½", a difference of 5½". The machine is 14½" in depth and the tunnel was about 3' from the side of the locomotive to the tiled tunnel wall. There was a further distance of 5" extended beyond three one foot anti-slip metal plates, and therefore the total distance from the side of the locomotive on the nearer tracks to the tiled wall would be 36" plus 5 making 41". If we take away 14½", the depth of the welding machine, we are left with 26½". If we take the width of the machine 20", assuming it to have been differently placed, we would be left with 21", the difference being 5½" between the two versions. The direction in which the connections were facing is not that relevant also because of the evidence of the Plaintiff. The Plaintiff explained to the Court that he had to station himself in the position that he was finally struck by the locomotive because one side was obstructed, another side was slanting and slippery. Therefore, no matter in which direction the connections faced, there was, according to the Plaintiff, no alternative but to select the position that he finally found himself in. In essence, the Plaintiff claimed that he had to be in the position where he was finally struck by the locomotive. He explained to the Court the reasons why he selected that position. He said he was aware that the position that he was squatting for detaching the cables from the welding machine was dangerous, but he expected the whole operation to last only a few minutes and the locomotive hopefully not to pass through the location at which he was detaching the cables in obedience to his instructions.

4. Let us consider what was being run inside the tunnel. There were two locomotives running on two tracks which converged shortly before a short distance from the entrance. There was no time schedule for the running of the locomotives. The operation would be dependent on the amount of excavated earth, soil and rock. The rate of excavation normally necessitated 20 trips for each locomotive in an 8 hours' shift. In all, there would be 40 trips for the locomotives in any one shift. The Plaintiff had been down in the tunnel during those 2 months and a day. Obviously he must have been aware of the unscheduled passing of the locomotive from time to time. The locomotive ran on tracks supported on suspended steel beams. Hence, the operation of the locomotive, run on rails not properly joined together but only by bolts without adjusting the levels and alignments, would generate considerable noise, from as well the vibration over the joints as metal friction due to levels and alignment. Near the tunnel face, the noise of an oncoming locomotive could be heard from 10 - 20 meters away with machines other than pneumatic drills working. Drilling was taking place at the tunnel face some 145 m. away from the welding machine in question. Mr. Karube testified that he could hear the noise of a coming locomotive at the welding machine some 30 meters away. I accept his evidence. The locomotive was equipped with a revolving light on top, two head lamps and a small red light in front. The two head lamps were similar in intensity to those of vehicular headlights. The lights could be seen over 10 - 100 meters away. There was a sound signal for the locomotive, but according to the Plaintiff, no sound signal was engaged before or at the time of his accident.

5. As far as the Plaintiff is concerned, he was conscious of the possible danger squatting in the narrow gap, but it cannot be said that he knew he would certainly be struck by the passing train. After all, it was a passageway. If one could walk through it, there is no conceivable reason why one should not squat there doing work, although a squatting position would be closer to the tracks.

6. The Plaintiff realized the hazards. There was no reason why he could not hear or see the approach of the locomotive. According to the Plaintiff, he was unaware of the oncoming locomotive at the time of the accident. The Plaintiff himself did not complain of lighting in the tunnel. Both Mr. Chin and Mr. Karube explained the installation of 40 watts florescence tubings inside the tunnel at 4 m. intervals with a spot light installed at the tunnel entrance. There is no evidence that such installation has ever been the subject matter of governmental interference. As I intimated, if in fact the lighting had been inadequate, the revolving light and the head lamps of the locomotive would have been more conspicuous. However, I come to the conclusion that lighting has not been shown to be inadequate by the Plaintiff despite the direct evidence of the Plaintiff himself and the two photographs on which Mr. Wong relies.

7. Counsel for the Plaintiff also complains of lack of warning or information relating to the frequency, timing and direction of the locomotive trips. Bath Mr. Karube and Mr. Chin explained to the Court that it was impossible to have any running schedules fixed for the locomotives in the circumstances. But even if the Plaintiff had been given any time schedules for the passages of these locomotives for the reason I explained to counsel during submissions, it would not, in my opinion, have rendered any assistance to him.    The state of mental preparedness of the passing of a train would be higher when the Plaintiff was told, as in this case, that a locomotive could come at any time, quite unexpected.

8. That would leave the place of work which also falls to be decided ultimately on the positioning of the welding machine. In my judgment, no matter how one looks at it, the gap in between the side of the locomotive and the welding machine was in the circumstances too narrow for comfort and safety. The narrow gap left between the side of the locomotive and the welding machine apparently had throughout been left as it was by the Defendants: Workmen in the tunnel used it as a passage leaving from the tunnel face or any distance beyond the welding machine in question for ingress or egress. But what seems to be what I would call an oblique admission on part of the Defendants is particulars (4) in para. 7 of the defence, which pre-supposes that the gap left between the side of the locomotive and the welding machine created a danger even as standing room. The Plaintiff is alleged in that particulars as having been negligent himself by "standing in the pathway of the locomotive when it was dangerous to do so". Obviously that refers to the gap or part of it in question. That aside, and I certainly would not act on that oblique admission of the Defendants to their prejudice although it reflects some consensus as regards the narrow gap, a gap of either 21" or 26½" between the side of the locomotive and the welding machine was, in my view, just too narrow for comfort and safety. If the Plaintiff had been working closer to the welding machine, he would possibly have been missed by the locomotive, but it is always wiser after the event. The gap being small, the Plaintiff was squatting, working in the location that he found himself in and was injured.  As against the 1st Defendant, the Plaintiff claims that as employer, the Plaintiff was not provided with a safe place of work. I find no substance in the Plaintiff's allegation as to any unsafe system of work. The gap was not part of any working system. It was a place of work which was unsafe. Both the 1st and 2nd Defendants had been fully aware of the dimensions of the gap. It was, so described counsel, the bottleneck. The 1st Defendant, in my view, failed to discharge his Common Law responsibility as an employer in providing a wide enough gap there for the Plaintiff to squat and work trying to have the cables detached. As against the 2nd Defendant, I need not separately consider its Common Law liability and liability under the Occupiers' Liability Ordinance. The degree of common duty of care demanded under both is the same. I accept counsel's analysis.  For the same reason, the 2nd Defendant as occupier was negligent in leaving the narrow unsafe gap for passage or use of workers in the tunnel. There was no warning sign erected or other precautions taken to remove the inherent danger of this bottleneck for any invitees, including the Plaintiff. In the circumstances, the 2nd Defendant failed in discharging that common duty of care and was therefore negligent. The 2nd Defendant was not, I find, in breach of any statutory duty as alleged. The tunnel was adequately lit despite the Plaintiff's evidence and the photographs. In any case, the Plaintiff's accident was not caused by any poor lighting. The Plaintiff was too involved with what he was doing. He was quite unaware of the approaching locomotive. He himself was not seeking to make any capital of the lighting of the tunnel.

9. As for the 1st Defendant, counsel for the Plaintiff relied on Particulars (b) in paragraph 7 of the amended Statement of Claim. Counsel submitted that that was sufficient to enable the Plaintiff to rely on the allegation of unsafe place of work as against the 1st Defendant. It is a little difficult to understand that paragraph. There is some substance in what Mr. Wong's submission in order to give meaning to the words "to ensure that it was reasonably safe for the work to be done". If Mr. Wong is incorrect, I would be, in the circumstances, prepared to take the pleading as if it had been amended by the insertion of the word "and" before the words "to ensure" so as to make its meaning plainer. I had asked Mr. Wong before his turn to disclose the specifics in his final submissions. Mr. Yau on behalf of the Defendants was fore-warned. I had made enquiries from Mr. Yau, counsel for the Defendants as to what measures or steps he would have proposed to take if I had decided to allow the Plaintiff to argue on the specifics outlined in advance by Mr. Wong. Mr. Yau intimated that he would have simply confined himself to legal submissions. There was no application for re-opening any part of the case or recalling any of the witnesses in the event.

10. I find that the 1st Defendant as employer was negligent in his failure to discharge his Common Law responsibility of providing a safe place of work. He was sending the Plaintiff to a location where working in the gap, as I have described, was one of the possibilities. Of course, the 1st Defendant would not know how the Plaintiff was to operate, but the Plaintiff was never warned not to work in that gap. There was no evidence that any one had considered barring the workers from using this gap for passage or work when the train was running or passing through. The Plaintiff found one side slanting and slippery and the other side obstructed. He was quite entitled, in my view, to select the location that he finally did for work. He knew that it would be dangerous to work in a narrow gap. From the tenor of his evidence, an accident was not thought to be inevitable. Besides, work was brief and the locomotive might not have come. In the circumstances, the 1st Defendant failed to discharge his employer's duty to provide a safe place of work.

11. As for the Plaintiff, he was certainly negligent himself. It is difficult to expect him not deciding to work in a slanting and slippery position. With hindsight, it could be said that he was unwise not to take that uncomfortable and slippery position in preference to the gap. But a slanting and slippery position is also dangerous. What would the Defendants have said if the Plaintiff had met with an accident after having chosen a clearly hazardous slippery and slanting position instead of a narrow gap in which the danger of a passing locomotive might not arise? It is unfair, in my view, to expect the Plaintiff to select a position which presented an immediate danger. I accept the Plaintiff's explanation that he had no alternative. However, the Plaintiff could not explain why he could not hear the sound of the coming locomotive. The excavation noise level in the tunnel was high, but according to Mr. Karube and Mr. Chin, the noise generated by the locomotive was such that at the position of the welding machine in question, it would not be drowned by the excavation noises nor affected by the compressed air. I find that the Plaintiff should be able to hear the coming locomotive from a safe distance so as to move aside. The Plaintiff did not claim to have been wholly deafened by the compressed air or the excavation noises. Even if he had been, there could have been no justification for the Plaintiff not to have seen the revolving light and the head lamps and felt the vibration of the approaching locomotive. The Plaintiff obviously did not keep any proper lookout, failed to pay any proper attention to the noise and vibration generated by the oncoming locomotive, failed to pay any proper attention to the lighting mounted on the locomotive and he obviously was negligent in not removing himself from the gap when the train was passing through. In the circumstances, I find the Plaintiff himself highly negligent. Indeed, I accept the evidence of Mr. Chin that he was surprised by the news of the accident.

12. To do the best I could, I find the Plaintiff himself more negligent than the Defendants.   I conclude that the Plaintiff was himself 65% responsible for the accident.

13. As for quantum, with some exceptions I would adopt all that has been said by Mr. Yau, having taken into consideration very carefully what has been submitted on behalf of the Plaintiff by Mr, Wong. I certainly would be prepared to take $180 as the average income of a welder in April 1987, that is with slight increment by way of inflation from the last estimate. I would therefore adopt $180 a day rather than either $130 or $170 a day. The difference would be: ($180 x 26 - $2,650) x 15 x 12 = $365,400. Otherwise, the other figures calculated by Mr. Yau are preferred to that suggested by Mr, Wong.  I would give interest at 2% from the day of writ to the day of judgment for pain and suffering and loss of amenities and half the normal usual short term interest rate at 4% instead of 3½ per annum for the special damages from date of the accident to judgment. The agreed expenses are trivial, and I simply include them in the special damages for interest calculation, though strictly speaking they should attract a different rate from, perhaps, date of the writ. As for pain and suffering and loss of amenities, I am drawn to the submission of Mr. Yau that this is really somewhere near the bottom bracket of serious injury. I would, however, instead of $117,000 round it up to $120,000, hence $120,000, $113,570, $365,400. and also the $1,675 admitted special damages. I certainly would adopt the figure of 15 days instead of a full month as suggested by Mr. Wong for tonic food. I find the acceptance of tonic food as being a generous gesture on behalf of the Defendants. I would have been reluctant to give concession to any claim for tonic food in the circumstances.

Damages

14. In the circumstances, judgment be given to the Plaintiff as I have indicated, in the sum as I have recalculated with interest as I have re-set less 65% by way of contributory negligence on the part of the Plaintiff himself. Workmen compensation has been awarded and,if paid, credit shall have to be given to it. Costs, despite the 65% of contributory negligence, is on good authority to go to the Plaintiff, such costs to be taxed in accordance with Legal Aid Regulations.