WONG CHI WING v. CHUN WO BUILDING CONSTRUCTION LTD AND ANOTHER

CACV 4113/2001 & CACV 187/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 4113 OF 2001 & 187 OF 2002

(ON APPEAL FROM HCPI NO. 1476 OF 2000)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. I agree with the reasons given by Ma JA.

Hon Le Pichon JA:

2. I agree with the judgment of Ma JA.

Hon Ma JA:

Facts

3. By a notice of appeal dated 27 December 2001 (CACV 4113/2001), the 1st defendant appealed against the judgment of Seagroatt J dated 2 November 2001 in which he gave judgment to the plaintiff against it on his claim for personal injuries, with damages to be assessed. In the same judgment, however, the learned judge dismissed the plaintiff's claim against the 2nd defendant, the plaintiff's employer. The plaintiff appealed this part of the judgment (CACV 187/2002) but only on the basis that if the 1st defendant's allegations against the 2nd defendant were sustained on appeal, he should have the benefit of this as against the 2nd defendant. I shall presently put these appeals in context.

4. After hearing submissions from Mr Neville Sarony SC for the 1st defendant, we dismissed the 1st defendant's appeal, whereupon Mr Warren Chan SC for the plaintiff abandoned his appeal.

5. The accident took place on 26 December 1997. At that time, the plaintiff was working on the first floor of an uncompleted building at a construction site of what is now Tsing Yi Station (which services the airport railway route). I shall refer to this first floor part as "the Premises". At that time, the station was undergoing some renovation and fitting out works. The 1st defendant was the main contractor for such works.

6. On the day in question, the plaintiff was carrying out his duties as a toilet extraction worker at the Premises. There was located at that part of the building a mobile chemical toilet. One of the plaintiff's duties was to extract waste from the toilet. This was done by means of a hosepipe which was connected from the toilet to a waste disposal tanker parked at the ground floor. The hosepipe ran from the toilet along the floor of the Premises for some 40 feet, to a pillar that was located at the edge of the floor. This pillar was referred to throughout the trial for convenience as pillar 27C. At that point, there was a metal guard rail over which the hosepipe went and then down to the ground floor where the waste disposal tanker was located. The hosepipe was secured onto the guard rail by a piece of rope to keep it in place.

7. Pillar 27C was, as I have said, at the edge of the floor. It is the area along this edge of the building that features in this case. This edge was exposed, meaning there was no wall or window to separate the floor from the outside. From the toilet, the hosepipe cut more or less diagonally across the floor and a portion of it ran close to the edge of the Premises I have just referred to.

8. The plaintiff had been working at the construction site for several months before the accident (probably as from July 1997). His employer was the 2nd defendant which had rented mobile chemical toilets to the 1st defendant for use at the site. Under its arrangement with the 1st defendant, the 2nd defendant was responsible for the supply and maintenance of these toilets.

9. We are of course only concerned with the Premises. Earlier, I have made reference to a metal guard rail that was located at pillar 27C. When the plaintiff originally commenced work at the Premises, this guard rail seems to have extended from pillar 27C along the exposed edge of the building for over 30 feet to another pillar which was referred to as pillar 27D. Pillar 27D was located at an internal wall at the Premises behind which was some stairs. Whether or not the guard rail extended beyond pillar 27D does not matter for present purposes. What is, however, of relevance is the fact that this guard rail, about 3 feet high, ran along the edge of the building and was intended to be a safety fence. The edge of the building was as I have said an exposed one. The rail was affixed onto metal stanchions which ran along the edge.

10. Sometime in December (probably in the early part), however, this guard rail was removed. At that time, the Premises had become some sort of refuse or rubble discharge point for the building and at the end of each working day, a mini-loader would simply push the rubble and debris that had accumulated there over the edge to the ground. As the learned judge observed, a guard rail would hinder this activity. The guard rail had been fixed on stanchions, which still remained and can be seen in the photographs. The guard rail could have been fitted back onto the stanchions each time after the mini-loader had pushed the rubble over the edge. The only apparent reason that was not done was convenience.

11. Replacing the guard rail along the edge of the building was a chain which was attached from pillar 27C (about 5 feet up), extending along the edge of the building, to some scaffolding at the edge near pillar 27D.

12. I have mentioned earlier that the metal guard rail was removed. That is strictly speaking not entirely accurate because a remnant of the rail remained at pillar 27C extending for a few yards along the edge. It will be remembered that the hosepipe leading from the toilet at the Premises to pillar 27C was slung over and secured to that part of the guard rail there before going down to the ground floor. When most of the guard rail was removed in December 1997, the part over which the hosepipe was slung, seems to have remained.

13. At about 11:45 am on 26 December 1997, while the plaintiff was working at the Premises, he found that there was some blockage along the hosepipe. He went to that part of the hosepipe towards pillar 27C to investigate. This was near the edge of the building (although just how near was never really established at trial). As he did so, he lost his footing and fell over the edge of the building to the ground floor, sustaining injuries.

14. On 12 December 2000, the plaintiff instituted proceedings against the 1st defendant, who was the occupier of the building site and the 2nd defendant, his former employer.

The judgment below

15. After a trial lasting some eight days, Seagroatt J handed down judgment on 2 November 2001 in which, as I have said, he gave judgment for the plaintiff against the 1st defendant, but dismissed the claim against the 2nd defendant (although, curiously, his order was to give the 2nd defendant judgment against the 1st defendant - I shall refer to this later). Briefly, his conclusions were as follows:-

(1) The 1st defendant was negligent and in breach of statutory duty (specifically of Regulations 38A and B of the Construction Sites (Safety Regulations), Cap. 59) by failing to provide safe premises or conditions for the plaintiff to work in. The chain was found to be totally inadequate as a safety measure and moreover, no warnings had been given to the plaintiff as to the dangers of the exposed edge of the building.

(2) As for the 2nd defendant, the learned judge found that they had discharged their non-delegable duty of care to the plaintiff to provide a safe place and system of work. The 2nd defendant had in fact carried out inspections of the building site prior to the accident (specifically in September and November 1997) when the metal guard rail at the Premises was still in place. However, when the rail was removed in December, no one had informed it of this. The allegations made by the 1st defendant against the 2nd defendant were rejected by the learned judge (it was very much a part of the 1st defendant's case at trial that it was the 2nd defendant who was to blame for the accident). Among these allegations was an alleged failure to provide the plaintiff with safe shoes (i.e. non-slipping shoes).

(3) The plaintiff was found not guilty of any contributory negligence. The learned judge did not find that any of the criticisms made by the 1st defendant of his conduct on the day of the accident could be sustained. He made particular reference to the aspect of safe shoes. The learned judge's ultimate view was that it was quite pointless to go into the issue whether or not such shoes were available to the plaintiff or whether he should have worn them when the matter was, first of all, not even pleaded by the 1st defendant against the plaintiff as an aspect of contributory negligence and secondly, when there was no evidence as to precisely how the plaintiff had slipped that day. There was therefore no basis to consider how, if at all, safe shoes would have made any difference.

16. As to costs, it was ordered that the plaintiff's costs be paid by the 1st defendant and the 2nd defendant's costs be paid by the 1st defendant as well. As to the latter, this was effectively a Sanderson Order. The learned judge took the view that the 1st defendant had blamed the 2nd defendant for the accident and therefore it would be right that it should pay its costs of the action. This explains why the learned judge ordered that there be judgment for the 2nd defendant against the 1st defendant. Strictly speaking, of course, he should simply have dismissed the plaintiff's claim against the 2nd defendant and then made a Sanderson Order, but the order that he made was effectively the same.

The issues on appeal

17. The issues raised in the Re-Amended Notice of Appeal were clarified in the 1st defendant's skeleton submissions placed before us and even further refined by the oral submissions of Mr Sarony.

18. In summary, Mr Sarony made the following submissions:-

(1) Though, admittedly, the 1st defendant was negligent and in breach of duty, the plaintiff was however guilty of contributory negligence in at least the following respects:-

(a) It must have been plainly obvious to the plaintiff that the metal guard rail which had originally been in use prior to December 1997, was no longer there on the day of the accident. Accordingly, it was negligent, indeed, dangerous or even reckless (as Mr Sarony put it) to have worked so close to the edge of the building when he fell off.

(b) The plaintiff should not have been working so close to the edge in any event, whatever he was doing. In the Re-Amended Defence of the 1st defendant, it had been pleaded that the plaintiff had gone to the edge to call out to his colleague who was manning the waste disposal tanker on the ground floor.

(c) He did not wear safe shoes.

(2) The 2nd defendant was negligent in two respects: first, it did not provide safe shoes for the plaintiff or ensure that such shoes were worn by him; secondly, the 2nd defendant did not adequately inspect the Premises to ensure that they were safe for the plaintiff to work in. It was said in this latter respect that inspections should have been carried out on a weekly basis and if such inspections had been carried out in December, the 2nd defendant would have been alive to the dangers of working near the edge of the building. For these reasons, the 1st defendant therefore contended that the 2nd defendant was also liable to the plaintiff and should in the circumstances be held 75% responsible for the accident. Although, as we were told, no contribution proceedings were afoot between the defendants, the 1st defendant wanted on appeal to seek a 75% contribution from the 2nd defendant.

(3) Finally, in relation to the costs of the action, the learned judge should not have made a Sanderson Order.

19. I now deal with these issues in turn.

Contributory negligence

20. Mr Sarony forcefully made the point that it must have been plainly obvious to the plaintiff that the guard rail that was in place prior to December 1997, was no longer there at the time of the accident (or at least most of it). He referred to the fact that the replacement of the guard rail by the chain had taken place in early December and the plaintiff had worked at the Premises at least twice a week. Mr Sarony also pointed to the photographs that were taken after the accident showing that the remnant of the guard rail was such that it must again have been obvious to the plaintiff that it did not extend all the way along the edge as it had done previously.

21. I am unable to agree with these submissions:-

(1) However strong this submission may have been at trial, we are now at the appeal stage. Here, Mr Sarony, (as he rightly accepted) is constrained by the findings of fact made by the judge. At trial, the plaintiff was cross-examined as to his awareness of the existence of the chain and correspondingly, of the non-existence of a large part of the guard rail that had previously been there. The plaintiff's evidence was clear. He was of the impression that the guard rail was still there and he was not really aware of the chain. Of course, he later became aware of the chain when he fell as he tried to grab hold of it to prevent his fall. The learned judge accepted his evidence. He says this at paragraph 40 of his judgment, "At no time did he [the plaintiff] see that the metal railing had been removed". And again at paragraph 41, he says, "He was not aware that the railing did not extend across the floor opening". I cannot see how it can be said that the learned judge erred here. He listened to the plaintiff's testimony and accepted it. There was nothing unreasonable, much less bizarre, about that and to be fair, Mr Sarony did not in the end really suggest so. Even if somehow one could go behind the learned judge's findings of fact here (which we cannot), I would not have said it was obvious to the plaintiff at all that the guard rail was largely missing. No part of the plaintiff's duties on the premises required him to observe, whether on a day to day or any basis, the state of the guard rail to see whether it continued to extend all the way along the edge of the building. I would have thought that, absent his being informed to the contrary, he was entitled to assume on the day of the accident that the guard rail continued to run along the edge as it had done before.

(2) Besides, this point (which became Mr Sarony's main argument on appeal) was not even pleaded in the 1st defendant's Re-Amended Defence, except perhaps (if one wanted to be generous here) in a most general way.

22. I now turn to the submission that the plaintiff should not have been so close to the edge that day. This was upon analysis no different a point than the submission that the absence of the guard rail must have plainly obvious to the plaintiff. If the plaintiff had worked close to the edge that day (as he must have at some point), it surely could not have been regarded as negligent or careless to do this if he thought there was a guard rail along the edge of the building. This would have given him some peace of mind. And so one comes back to whether he ought to have known about the danger. I think Mr Sarony eventually accepted this. As to whether the plaintiff was calling out to his colleague below that day, this was indeed pleaded and put to the plaintiff in cross-examination, but the learned judge expressly rejected this in his judgment. I should add that we were taken through an examination of a plan that had been provided at trial to show that the distance between the hosepipe and the edge of the building (where the plaintiff fell off) was such that he could not have been attending to the hosepipe (as he alleged) when he fell. Again, the 1st defendant is constrained by the findings of fact of the judge who found that he was carrying out his job at the time of the accident. As I have said, he expressly rejected the pleaded contention that the plaintiff was calling out to his colleague below just before the accident happened. Finally, I should just observe that the exercise of calculating measurements on the plan was based on the faulty premise that the hosepipe marked on it was exactly in that position on the day of the accident. However, this was just a rough approximation of where it was. The plan was made well after the event. This was in fact accepted at trial (as one can see from the transcript) in the exchanges between the 1st defendant's counsel (not Mr Sarony) and the judge and, I might add, was accepted before this court by Mr Sarony.

23. In relation to the wearing of safe shoes, like the judge, I am unable to see the relevance of this unless it can also be demonstrated that they would have made a difference, meaning that the accident may well not have occurred had safe shoes been worn. There is nothing in the evidence before us (nor before the judge) to indicate just how the plaintiff lost his footing. Mr Sarony refers to an answer the plaintiff gave in his examination in chief when he said, "I believe there was some sand on the floor". However, this was never developed in cross-examination. This argument was not pleaded either.

24. For the above reasons, I am of the view that the learned judge did not err at all in concluding that there was no contributory negligence on the part of the plaintiff. It just could not be said that the plaintiff had over stepped the boundary between inadvertence and negligence, to borrow a phrase from Mullard v Ben Line Steamers [1970] 1 WLR 1414, at 1418 (referred to by this court in Mak Woon King v Wong Chiu [2000] 2 HKLRD 295, at 302).

The 2nd defendant

25. This aspect can be quite shortly disposed of.

26. On the provision and wearing of safe shoes, I would simply refer to the above reasons. The points made by Mr Sarony do not even arise unless the relevance of safe shoes can first be demonstrated.

27. As regards the point made as to the regularity of inspections, while Mr Sarony submitted that they should have been carried out once a week, no real basis was given for this. I agree with the learned judge that the 2nd defendant had not acted unreasonably. It should be borne in mind that a member of the 2nd defendant's staff had made inspections in September and November 1997 and had seen the guard rail in place during those inspections. While I fully accept Mr Sarony's point that a building site constantly changes, I would have thought, however, that if an important safety feature was removed from the Premises, the 2nd defendant would have expected some notification from someone, notably from the person who removed it, namely the 1st defendant. It received no such notification. The next inspection on the part of the 2nd defendant had been scheduled for January 1998. I see nothing unreasonable in the 2nd defendant's conduct in all this.

28. Mr Sarony made a general point that employers owe a non-delegable duty to ensure that their employees work in a safe environment and under a safe system. He submitted it was important to bear this firmly in mind when considering the 2nd defendant's position. We agree and this duty is well recognised by the courts. However, in the present case, the 1st defendant simply cannot demonstrate that the 2nd defendant had acted unreasonably in discharging this duty. Not even the plaintiff goes so far to argue this. His appeal was premised only on the 1st defendant succeeding in its appeal regarding the 2nd defendant. As I have said, when we announced that the 1st defendant's appeal would be dismissed, Mr Chan for the 2nd defendant immediately abandoned the plaintiff's appeal.

The Sanderson Order

29. Mr Sarony fairly accepted that if the 1st defendant's appeal failed on the two issues I have dealt with, this part of the appeal would likewise fail. It is therefore unnecessary to deal with this further except to say that the submissions contained in the skeleton submissions of Ms Audrey Eu SC merely reinforce the conclusion that the learned judge was correct in making the order for costs he did.

Conclusion

30. As I have earlier said, we gave our decision at the conclusion of Mr Sarony's submissions at the hearing of the appeal. However, so as to confirm the orders we made, I would just set out the precise form of them:-

(1) The appeal in CACV 4113/2001 be dismissed.

(2) The appeal in CACV 187/2002 be dismissed.

(3) Costs in both appeals to be to the plaintiff and the 2nd defendant, to be paid by the 1st defendant, such costs to be taxed if not agreed.

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