HUI SHUK WAH v. NICE PROPERTY MANAGEMENT LTD

DCPI 631/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 631 OF 2011

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BETWEEN

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D E C I S I O N

1.  For failure in filing notice of intention to defend, the Plaintiff (“Hui”) obtained interlocutory judgment on liability against the Defendant (“NPM”) on 10 June 2011. NPM applied by summons to set aside the default judgment. On 28 September 2011, the Master dismissed NPM’s summons with costs to Hui (§§1 and 3 of the order). By summons filed on 11 October 2011, NPM appealed against the Master’s order. Hence this hearing.

2.  I am re-hearing the application by NPM to set aside the interlocutory judgment.

3.  That the judgment was regularly entered is common ground.

The claim

4.  By the present action, Hui claims damages for injuries sustained in the course of her patrol duty on the roof of the East Block of Kowloon Tong Education Services Centre at Kowloon Tong, Kowloon (“the Centre”) at about 5:40 pm on 8 April 2008.  She was allegedly tripped by an uncovered drain near staircase no.9 on the roof.  As a result, she suffered from fractured ankle.

5.  According to the pleading, Hui claims against NPM on the following bases:

(1) breach of duty implied to the contract of employment;

(2) negligence;

(3) breach of duty under section 6 the Occupational Safety and Health Ordinance, Cap.509; and

(4) breach of duty as an occupier of the Centre.

The setting aside

6.  It is Hui’s burden to prove her case.  Yet in view of the regular judgment, it becomes the burden of NPM to satisfy the court that its defence on liability carries a real prospect of success for the purpose of setting aside the judgment.

7.  NPM relies on the affirmation of Chang, senior property manager of NPM.  He has been responsible for handling insurance claim since March 2011, including that by Hui.  He explained the default on the part of his company.  If suffices for me to say that the explanation, even if accepted, shows a lack of prudence on the part of NPM that let the judgment be entered by default.  Having said that, I would not say that that reflects NPM’s indifference to the action as it has been defending the employees’ compensation proceedings arising out of the same accident.

8.  It was really Ho, the director of NPM, who deposed to the merits of the defence of his company.  Ho essentially suggested that his company provided security services to the Centre; but it had and has no control over the management and repair of any part of the Centre.  Reference was made to the contractual documents between the company and the Education and Manpower Bureau.  On this basis, it was suggested that NPM was not at the material time an occupier of the Centre.

9.  It is argued on behalf of Hui that NPM had sufficient degree of control over the Centre so that it was at the material time an occupier.  As such, it owed the common duty of care towards Hui as an admittedly lawful visitor.  As far as whether NPM was at the material time an occupier of the Centre is concerned, I agree with the argument on behalf of Hui.  That is so, even assuming that the contract between the Education and Manpower Bureau and NPM was confined to the provision of security services as alleged.

10.  I also see no real room for disputing that NPM owed Hui the implied duty to take reasonable care of the safety of Hui at work as well as the general duty not to be negligent.  The statutory duty is not different from the employer’s duty implied to the contract of employment.

11.  The real question as regards liability, in my view, lies in whether NPM was in breach of any of these duties.  This depends on what steps were reasonably expected of NPM to take to prevent an accident like the one alleged.  For the following reasons, I think this is genuinely arguable.

12.  First, what actually caused the alleged accident needs to be identified.  This NPM did by the second affirmation of Ho exhibiting the photographs of the scene of the accident. What Hui pleaded as the drain that tripped her is now identified in the photographs as the gutter forming part of the construction of the floor of the roof level.

13.  NPM may not have good prospect in its defence insofar as whether it was an occupier of the Centre (the roof included) is concerned.  However the same may not be said insofar as whether NPM, even as occupier, was in a position to influence, let alone change, the construction of the gutter or its condition at the time of the accident.  That includes whether the gutter, which is apparently for drainage, should and could be covered as suggested by Hui.

14.  Second, the gutter is a long shallow concave trough.  Ho explained with reference to the photographs that after exiting the doors leading to the roof level, Hui should be standing on a raised platform of about 30 inches wide and 7.5 inches high above the floor of the roof level.  The gutter is about another 31 inches away from the curb of the platform.  Putting aside for the time being the accuracy of the measurements, the setting of the scene is well depicted in the photographs.  This gives rise to the question of how Hui managed to step onto any part of the gutter right after she had exited the doors and stepped out of the platform.

15.  Third, the photographs depict the substantial length and the width of the gutter.  According to the pleading and NPM’s evidence, the gutter is about 1.5 inches deep and 10-12 inches wide. Again, putting aside the accuracy of the measurements for the time being, the photographs suggest that the gutter should be readily visible in daylight.  This gives rise to the question of whether NPM was under the duty to issue warning to draw the attention of the security guards specifically to the gutter as if the same posed certain hidden risk of danger to them at work.  This is not an isolated hole on the floor.  As far as the photographs depict, the gutter is not in a state of disrepair.  In this regard, Ho also deposed that no report of incident arising out of the gutter or its condition has ever been received.

16.  Fourth, and in connection with the preceding point, Hui joined NPM in December 2007 and had nearly 4 months of experience of working at the Centre prior to the accident. Though not determinative, the fact, if indeed it was the fact, that she had not met this kind of accident before would be a relevant consideration.  In the present case, the accident happened during day time at about 5:40 pm when she should have been able to see the gutter, had she taken ordinary care during her patrol.

17.  Of course, any or all of the above points may be in dispute.  But such dispute will be mainly factual.  On this basis, a defence raising such factual dispute by reference to the available evidence can hardly be categorised as lacking a real prospect of success.

18.  The view that I need to take at this stage is whether NPM manages to demonstrate by the evidence in hands that its defence on liability is one that could not be categorised as lacking real prospect of success.  I am satisfied that NPM just did that.

Further evidence

19.  I turn to the summons filed by NPM on 30 November 2011, i.e., after the Master’s dismissal of its application to set aside.  This is for leave to adduce new evidence on appeal.

20.  O.58, r.1 of the Rules of the District Court provides that no further evidence may be adduced on appeal under this rule except on special grounds.  Such exceptional grounds reflect the elements laid down in the case of Ladd v Marshall [1954] 1 WLR 1489.

21.  NPM seeks to adduce (i) 2 photographs depicting the gutter in question; and (ii) a record of seminars held for the security guards in 2007-2008.

22.  As far as the photographs are concerned, the real purpose is to correct the measurement of the depth of the gutter marked in the photographs previously adduced.  They are not necessary for such purpose.  NPM only needs to concede (for the purpose of these proceedings) that the correct measurement of the depth of the gutter is that pleaded by Hui.

23.  As far as the record of seminars is concerned, I too find it to be unnecessary.  If it is the fact that seminars had been held for the security guards, then even Hui admitted in her affirmation that she did receive introductory briefing when she was employed and daily briefing on duty.  There is no suggestion that Hui was unaware of the presence of the gutter prior to the accident.  The question raised by the defence is whether NPM was reasonably expected to specifically warn the security guards against the gutter.  It is not suggested that the seminars covered such warning.

24.  Shortly after the hearing has begun, the application for leave to adduce the new evidence was withdrawn.

Conclusion and order

25.  For the avoidance of doubt, I give leave to withdraw NPM’s summons to adduce new evidence with costs occasioned by the summons be to Hui in any event.

26.  I allow the appeal and set aside §§1 and 3 of the order of the Master dated 28 September 2011.  Upon that, I give the following directions:

(1) leave to NPM to file and serve the Defence within 28 days;

(2) leave to Hui to file and serve Reply, if any, within 28 days thereafter;

(3) parties do comply with O.25 upon the close of pleadings;

(4) checklist review hearing fixed on 5 January 2012 be vacated.

27.  I see no reason why costs should not follow the event of this appeal so that NPM shall have the costs of this appeal with certificate for counsel.

28.  In view of the judgment being regularly obtained and what I said about the explanation for the default, I am not prepared to disturb the costs order below, i.e., costs of the application and the hearing before the Master shall be to Hui in any event.

29.  All costs shall be taxed, if not agreed.  Hui’s own costs shall be taxed in accordance with legal aid regulations.