LAI KWONG KEE v. HONGKONG UNITED DOCKYARDS LTD

IN THE COURT OF APPEAL

1987, No. 129
(Civil)

BETWEEN

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J U D G M E N T

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Fuad, J.A.:

1. On the 19 June 1987, Nazareth J. awarded $283,616 general and special damages to the Plaintiff, Mr. Lai Kwong Kee, against his employers, the Defendant company, Hong Kong United Dockyards Ltd. ("the Company") for the personal injuries he sustained in 1982 while at work. The judge directed that the $124,194 the Plaintiff had received under the Employees' Compensation Ordinance be deducted from the judgment sum.

2. The Company appeals to this Court both in respect of liability and the quantum of damages.

3. The Plaintiff (who is now about 34 years of age) was, at the material time, working for the Company as a Journeyman Fitter. He had been employed by them for some four years.  At the Company's workshops on Tsing Yi Island there was a shed made of corrugated iron called the Filter House. It contained water supply equipment and meters which had to be monitored and controlled 24 hours a day. Apart from his duties there, the Plaintiff had to visit two pump houses in the compound, one very close and the other a considerable distance away.

4 .The Plaintiff worked on alternate 12 hours shifts, sharing his duties with his father-in-law, Mr. Chan Sing Yip. Between them, they were retired to attend the two pump houses about 10 times during the day and about 8 times during the night.

5. During the course of the Plaintiff's employment, the Company leased the area in front of the Filter House, first to another organisation, and later to one of their associated companies, as a container storage depot. This depot was fenced off from the rest of the Company's compound. The Filter House then formed part of the boundary fence, with its door into the depot and its windows giving on to the compound.

6. Before the depot was established in about 1980, the Plaintiff and Mr. Chan would use the door of the Filter House on their visits to and from the pump houses.  After the fencing was in place they started to go in and out of the Filter House through one of the windows.

7. The windows of the Filter House are about 3-4 feet from the ground and just below them there are pipes which run into the Filter House from outside.

8. The Plaintiff had a fall before the accident with which we are concerned.  This was on 21 April 1982.  He fell while he was stepping down on to the floor of the Filter House off the pipes inside.  He had then to take one month's sick leave.

9. Sometime after this, Mr. Chan tied a plank on to one of the outside pipes to provide a surer footing. To leave the Filter Rouse to perform their duties, the Plaintiff and Mr. Chan would step out through the window, first on to the plank, next on to the pipes and then on to a metal barrel, to reach the ground. It was on the early morning of 10 November 1982 that the Plaintiff, when stepping on to the barrel, slipped and fell against it injuring his back, which accident led to this action.

10. The Plaintiff sustained a prolapse of the 4th and 5th lumbar intervertebral discs and had to undergo physiotherapy until May 1984. He then had a laminectomy operation which was not wholly successful. Since the accident, he suffered, and continues to suffer, low hack pain aggravated by standing, sitting, walking and climbing stairs. He has wasting and loss of strength of the right leg, and a weakness of the dorsi-flexion movements of the right foot. Thus, his general mobility has been reduced. He is unfit for heavy work and can no longer work as a fitter or pursue his former hobbies of walking and cycling.

11. The Plaintiff's pleaded case was that the tenant of the container storage depot had caused or permitted (a) containers to he stacked in the depot and around the Filter House so that access to it could only be gained by walking through a small gap between the stacked containers and (b) the area on to which the door opened, between the Filter House and the containers to be obstructed by machinery, litter and refuse.

12. By reason of all this, it was averred, it became difficult and dangerous to go in and out of the Filter House because:

(a)  the small gap between the containers opened immediately on to an area of heavy vehicle and container traffic;

(b) there was heavy traffic of that kind between the rows of stacked containers;

(c)  there was a danger of being hit by container while they were being transported or by the vehicles themselves or by spillage from broken containers; 

(d) of the obstructions created by the machinery, litter and refuse.

13. The Amended Statement of Claim continues by saying that it was to avoid the dangers pleaded that the Plaintiff and Mr. Chan had used the window instead of the door;  that the Plaintiff had complained about these dangers on two occasions to the Company's foreman;  that despite these complaints the Company had done nothing;  that the foreman had suggested that the Plaintiff should construct some stairs outside the window but this was not possible because of the pipes and in any event no tools or equipment were provided – and the foreman should have known that neither the Plaintiff nor Mr. Chan had sufficient expertise to build the stairs.

14. The Plaintiff's accident on 21 April 1982 is then pleaded and it is said that the Company were well aware that the window was being used and that this route was dangerous and unsafe.

15. The Plaintiff averred, that the accident and his resulting injuries were caused by the negligence of the Company, their servants or agents or alternatively by reason of the breach by the Company of the duties owed to him under the Occupiers' Liability Ordinance (Cap.314). Particulars of negligence and/or breaches of statutory duty are set out. The first two aver that the Company failed to provide a safe place of work and proper and, safe access to, and egress from, the Filter House. Then are set out detailed particulars of the special damages claimed.

16. In his reserved judgment, the judge carefully reviewed and evaluated the evidence led by the parties.

17. In referring to the testimony of Mr. Wilson Woo, the Company's safety officer (who had, contrary to the evidence given by the Plaintiff and Mr. Chan, denied that he had told them after the first accident to tie gunny bags on to the pipes so that they would not be so slippery; that Mr. Chan had complained to him; and that he had seen the plank tied to the pipes) the judge remarked that it was his responsibility to see that the access to the Filter House was safe and added: "He gave me the distinct impression that he would concede nothing that would tend to suggest any failure of his duty or responsibility". 

18. As to the evidence of Mr. Yip, the foreman, who said he himself had used the door without difficulty because there were no obstacles outside; that there were adequate gaps between the stacked containers; and that he had told the Plaintiff to use the door after the first accident, the judge said he had not been impressed either by his evidence (which did not ring true) or by his demeanour.

19. After reviewing the evidence given by another foreman, Mr. Ng, the judge expressed the view that he was not being truthful when he had denied that the Plaintiff and Mr. Chan had complained to him of the danger and hazards involved in using the door, and went on to say: “I particularly observed him closely as his hesitation and unease was apparent at that point in his evidence.”

20. The judge then said that, by contrast, the Plaintiff, and particularly Mr. Chan, had given their evidence in a positive and convincing manner.  He felt that despite his apparent credibility, the Plaintiff's evidence had to be approached with caution because it was doubtful whether he photographs he had produced in support of his case depicted the position as it obtained between April and November 1982, and because the evidence showed that despite what he had said, for much of the time there were gaps between the stacked containers to allow passage.  I would mention here that the judge had earlier pointed to the discrepancies between the evidence given by the Plaintiff and that given by Mr. Chan.

21. The judge went on to say that he felt that the evidence of the Plaintiff and Mr. Chan about the gunny bags being tied to the pipes and about supplies being taken in and out through the window had the ring of truth about it.  Then there was the other evidence, particularly the admission made by another of the Company's foreman, Mr. Ng, that there was rubbish and other items outside the door of the Filter House at the material time.  The judge also thought that the fact that the Company had installed a staircase leading up to the outside of the window after the second accident suggested that the Plaintiff's use of the window “could not have been unwarranted or that unreasonable”.

22. The judge concluded that the Plaintiff had failed to establish any danger from falling containers, or from spillage from containers.  As for danger from vehicle movement, he would accept the possibility of very limited traffic between 10 p.m. and 8 a.m., but such traffic did not present any real danger to the Plaintiff so as to render the Company in breach of their duty of care to provide reasonably safe access.

23. However, he found that there was an accumulation of rubbish including some large items outside the Filter House door, which presented significant danger and inconvenience to the Plaintiff and Mr. Chan in their use of the door, particularly at night.  The photographs, even if taken after the material time, showed discarded items such as barrels, pallets and steel banding, which the Company allowed to accumulate.  This had to be considered in the context of the obstruction occasionally presented by the containers;  the potentially serious consequencies of being struck by vehicles moving, albeit infrequently, in the depot (and however remote that risk);  and the probability that at night the containers cast shadows within the container area.  There was also the fact that using the door involved a longer [about 150 yards] and less convenient route.

24. The judge held that having regard to all those matters, particularly the danger of negotiating the rubbish and discarded items at night, the route through the door did not provide reasonably safe access to the Filter House. Access could very easily have peen made safe by removing the accumulated rubbish, including the steel banding and the substantial items like barrels and pallets, or by providing another door, or a window staircase of the kind the Company subsequently had erected.

25. Furthermore, the judge said it seemed to him an entirely natural consequence of all this which had led to the use of the window, a route which was clearly dangerous. He did not think a bare warning would have discharged the Company's duty of care.  In any event he found that neither the Plaintiff nor Mr. Chan had been warned or directed not to use the window, although its use was clearly known to the Company's safety officer and foremen.  And despite the admission by the safety officer, that after his first fall, the Plaintiff had complained about the accumulated rubbish outside the Filter House door, the Company had done nothing to rectify the situation. In his judgment, the Company had failed in its duty of care in failing to provide reasonably safe access for the Plaintiff as their emp1oyee.

26. The judge then turned to consider the alternative basis, of liability put forward by the Plaintiff:  that his and Mr. Cha n 's regular use of the window for going in and out of the Filter House constituted part of the Company's unsafe system of work which was well known to them and, by permitting it to continue, the Company had failed in its duty of care. Upon that basis, too, he would hold the Company liable.

27. As to liability under the Occupiers' Liability Ordinance, the judge said, the Plaintiff was clearly an invitee and also allowed to be on the Company's premises for the purposes of his duties.  The system of work permitted by the Company involved the use of the window route which was unsafe to their knowledge, and they took no action to safeguard the Plaintiff, or even to warn him.  The Company in that respect, too, had failed in its common duty of care and was liable.

28. The Company had pleaded contributory negligence by the Plaintiff alleging that he had failed to use the door; he had used the window contrary to instructions from one of the foremen and the safety officer; he had continued to use the window, which he knew or ought to have known was dangerous, despite his accident in April 1982; and he had erected an unsafe arrangement [the plank] to facilitate the use of the window.

29. About this, the judge said, that while on the evidence there could be no doubt that the Plaintiff knew the window route was dangerous, since he had complained to his superiors of the danger of the only other route, and the Company had done nothing to remedy the position, he was not guilty of contributory negligence in using the window route.

30. The judge said he could see little purpose in attempting to assess which of the two routes was the more or less dangerous. Having failed to provide the Plaintiff with reasonably safe access, it did not lie in the mouth of the Company to complain that he had chosen the more dangerous of the two available routes (if indeed the window was the more dangerous), a fortiori since the Company had known for months that that route was being used and that it was dangerous. In addition, there was no evidence that the Plaintiff was negligent in the manner he used the window route.  He would therefore reject the Company's plea of contributory negligence.

31. The Company's Notice of Appeal on liability was to the following effect:

1. There was insufficient evidence for a finding that the Company failed in their duty to provide the Plaintiff with a reasonably safe access to his place of work.

2. The judge was wrong in law and finding of fact in holding –

(a)  that the Company failed in its common duty of care under the Occupiers' Liability Ordinance by taking no action to safeguard the Plaintiff or to warn him against the danger of using the window for access and egress;  and

(b) that the Plaintiff's regular use of the window constituted part of the Company's unsafe system of work and that they had failed in their duty of care by permitting it to continue.

3. The judge was wrong in failing to consider whether the alleged failure in the Company's duty of care was the operative and effective cause of the Plaintiff's injuries.  He ought to have found that it was his act in using the window route rather than the door that was the operative and effective cause.

4. The judge ought to have held, upon the evidence as a whole, that the Plaintiff was guilty of contributory negligence in using the window route.

32. Mr. Johnny Mok made it clear when opening the appeal on behalf of the Company that he was not attacking the judge's primary findings of fact, but inviting this Court to form an independent opinion on the proper inferences to be drawn from the facts he found:  Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370.

33. I think it is fair to say that the basis for the appeal against liability is the contention that the proper inference to be drawn from the evidence as a whole was that, contrary to the judge's findings, the route through the door did provide reasonably safe access to the Filter House.

34. Mr. Mok took us carefully through the evidence and I am bound to say, at once, that he has not persuaded me that the judge was wrong in reaching the conclusions upon which he found the Company liable.  I would add that in my judgment it is not right to say that he ignored the Plaintiff's own evidence and, as has been suggested, built up a case contrary to that put forward by the Plaintiff.

35. The duty of an employer towards his employees at common law is simply stated: his duty to them is to take reasonable care for their safety. It is, of course, not an absolute duty. He must, inter alia, provide a safe place and system of work. It seems to me plain, on the evidence the judge accepted and was entitled to accept, that the Company failed in its duty to the Plaintiff.  And in my view the argument, if I understood it correctly, that the Plaintiff did not discharge the onus of establishing the causal connection between the Company's breach of duty and the injury to him is not sustainable.

36. Mr. Mok's submissions on contributory negligence did not depend upon the contention that the evidence showed that the route in and out of the Filter House via the door was in fact reasonably safe. But once, as I have indicated, the judge 's finding that it was not so cannot validly be challenged, in my judgment there was clearly no contributory negligence established.  Certainly, in the judge's words “the Plaintiff knew the window route was dangerous” but the judge was justified in his view mentioned earlier that it did not lie in the mouth of the Company to complain that the Plaintiff had chosen the more dangerous of the two available routes (If, indeed, the window route were the more dangerous) particularly in view of the fact that the Company had known that a dangerous route was being used for some months.  I do not think that the judge's approach to this issue can be faulted.

37. Despite Mr. Mok's forceful submissions, therefore, I would upheld the judge's findings on the breach by the Company of its Common law duty to the Plaintiff.   It is not therefore necessary to consider breach of what I will call "occupiers' duty” under the Occupiers' Liability Ordinance.  But it seems clear to me that the judge was fully justified in finding the Company liable both for their breach of duty under the Ordinance and for breach of duty imposed by the common law, on the evidence as a whole. 

38. I have not referred to the authorities cited to us by Mr. Mok for to my mind they would only be relevant if the judge's conclusion that the use of the door was reasonably safe could successfully be challenged.

39. As to damages, the Company only seeks a review by this Court of the amount awarded to the Plaintiff in respect of his pre-trial loss of earnings ($133,666).

40. On the evidence the judge found that at the time of the accident, the Plaintiff's wages were $4,951.97 per month and that he would have had a 7% per annum increase up to the date of trial so that his wages would have been $6,511.84 per month. The median wages pre-trial, he worked out at $5,732. The judge then multiplied that figure by 54 (the number of months which had elapsed) and reached the figure of $309,528.   From that figure he deducted various amounts the Plaintiff had received by way, e.g. of sick pay, totalling $175,862. He thus reached the figure he awarded:  $309,528 - $175,862 = $133,666.

41. The submission by the Company is founded upon the following passage of the judge where the judge is assessing the Plaintiff's loss of future earning capacity:

"The Plaintiff's pre-trial rate of earning was $4,500. This is less than his actual pre-accident average. But if that average is discounted by one half of his overtime and night shift allowance, it drops to $3,708.55. Increasing that amount by 7% for 54 months (i.e. 31.5%) brings it up to a pre-trial amount of $4,876.74."

42. Mr. Mok submits that since the judge accepted that when the Government water supply was connected in 1982, the Plaintiff's wages would have dropped to $3,708.55 per month, this meant that if he had returned work after the accident in November 1982, his wages would have been $3,708.55 per month, and not $4,951.97. Thus, if the judge had used the lower instead of the higher figure, the Plaintiff's wages by the time of trial would have increased by $1,168.19 per month : $ 3,708.55 x 7 % x 4 ½ years. His wages at the time of trial would then have been $3,708.55 + $1,168.19 = $4,876.74, the pre-trial median of which would be very nearly $4,293.

43. Therefore in relation to the relevant period of 54 months the Plaintiff would have received $4,293 x 54 = $231,822. The judge's award was therefore $77,706 too much.  ($309,528- $231,822).

44. It seems, with great respect to the judge, that something might have gone wrong somewhere in his approach to the sums involved.  Certainly that he said about the figures for the pre-trial loss of earnings cannot readily be reconciled with what he said about them before turning to address the loss of future earning capacity. 

45. Earlier in his judgment, the judge had said that he accepted the evidence that the very large volume of overtime and shift work shown in the table prepared by the superintendent of the Company's accounting department, Mr. Kan, would drop to the levels worked by other fitters “when the Government water supply was connected.  That supply was connected in 1982.”  He then accepted as reasonable, and generous, the concession made by Mr. Mok that the Plaintiff's total earnings would drop by an amount, only, equal to one half of his previous total overtime and shift allowances.

46. If one looks at Mr. Kan's table (which shows the Plaintiff's actual total earnings from the beginning of June to the end of October 1982) one sees his total average monthly earnings were $4,951.97. If one reduces the average overtime pay and shift allowances by one half one reaches the figure $1,243.42: $4,951.97 - $1,243.42 = $3,708.55 which is the sum used by the judge as the starting point for the future loss of earnings (but not for the pre-trial loss of earnings).  This is where the inconsistency lies.

47. It might well be inferred from that the judge said that he accepted that the drop in the Plaintiff's earnings would have occurred at about the time of the accident.  Mr. Mok says that this must be regarded as a finding in his favour about which there is no Respondent's Notice so that the Company is entitled to the reduction he seeks on their behalf.

48. The foreman, Mr. Yip gave evidence that the Government water supply was connected, and the Filter House was taken out of operation, in March 1982, and that as a result the Plaintiff's overtime would not, after August, exceed about 10 hours per month.  I may mention that it was owing to this evidence that the judge felt that Mr. Mok's concession had he been generous. 

49. Unfortunately, Mr. Kan was not asked and did not say anything about these deductions but his table shows that if the Plaintiff's earnings would have been lower, they had not been reduced up to the end of October 1982. Thus we do not know when, if ever, the Plaintiff's earnings would have dropped. He is the witness who might have been expected to give positive evidence on the matter. It is to be noted that the Plaintiff was being paid $4,500 sick pay until November 1984.  In my judgment it was incumbent upon the Company to establish when, if at all, this would have happened so that the figures Mr. Kan produced would have to be modified.  It should not be left to the Court to speculate. 

50. It does not necessarily follow that the judge's inconsistent treatment of the figures entitles the Company to have the sum awarded for pre-trial loss of earnings reduced. It may be that the Company was fortunate, and the Plaintiff unfortunate, in the figure chosen by the judge as the starting point for his assessment of loss of future earning capacity.

51. In all the circumstances, I am persuaded that the Company has shown that the pre-trial figures are manifestly too high so that this Court should interfere with the judge's award.

 I would dismiss the appeal both as to liability and quantum.

Cons, V.-P.

52. I agree with my Lord.  Whether there is safe access to premises which an employee is required to use in the course of his employment is essentially a matter for the trial judge.  He would come to his conclusion by making findings of fact and, where appropriate, by drawing further interferences from those facts. 

53. By a detailed analysis of the evidence in the Court below, Mr. Johnny Mok for the Defendant company has attempted to persuade us that the inferences which the judge drew in this case were wrong.  Like my Lord, I am not so persuaded.  I cannot help feeling that taking the evidence in its entirety, judging it as best one can from the printed word, which is nowhere near as beneficial as hearing the actual witnesses, I would have come to the same conclusions as he did.  Certainly, I am not persuaded that he was wrong. 

54. Once his conclusions as to the safe access are accepted then, in my view, none of the other grounds of appeal are sustainable except possibly with regard to the question of quantum.  On this point, we are in some difficulty because with respect to the judge below, he has not given any indication expressly as to when he felt that the Plaintiff's wages could be expected, if at all, to drop in accordance with the submission as to the amount of fall in the wages put forward by Mr. Mok at the trial.

55. The evidence in this respect was unsatisfactory.  The prediction given by the foreman, that is August 1982, was not borne out partly by the fact that wages were clearly paid after that date at the higher rate and also because the payment, not quite as high but almost as high, as the earlier rate was carried on for some two years after the accident.  It seems to me in those circumstances the only course is to assume that the wages would have continued at that rate unless there is some good evidence to show that they would not.

56. In my view, the Company failed to produce that evidence and for that reason, I would not interfere with the figure which, in act, the judge adopted.

57. For these reasons I agree that the appeal should be dismissed.

Clough, J.A.:

58. I, too, agree that the appeal should be dismissed and there is nothing I can usefully add.