LEE WAI MAN AND ANOTHER v. WAH LEUNG FINANCE LTD

HCPI 106/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 106 OF 2002

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J U D G M E N T

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1. This is a fatal accident case in which the plaintiffs, being the administratrices of the estate of Yu Fu Wing Henry ("the deceased") claim damages on behalf of the estate and also for the dependants of the deceased. The first named plaintiff, Lee Wai Man Wendy was the wife of the deceased before his death.

2. On 30 April 1999 the deceased sustained serious injuries when he fell from the 15th floor onto the 6th floor through holes in the flooring of a building under construction at No. 381 Xizang South Road, Shanghai ("the site"). He died from those injuries the same day. At the time of the accident, the deceased was employed by the defendant as a project manager. The defendant was project managing the construction of the said building in Shanghai. The deceased was inspecting the progress of the construction works of the site. The developer of the project was Shanghai Shun Ho Property Development Ltd ("the developer"). The main contractor at the site was Guangdong Province Zhanjiang City No. 10 Building Project Co. Ltd ("the main contractor").

3. The claim is brought against the defendant as the employer of the deceased at the time of the accident for negligence and for breach of duty owed to the deceased as his employer.

4. In so far as the defence is concerned, it is not disputed that the defendant was the employer of the deceased at the time of the accident. Nor is it in dispute that the deceased died as a result of the fall from the 15th to 6th floor of the building under construction at the site when he was carrying out an inspection of that building as part of his employment duties as a project manager for the defendant. It is also admitted by the defendant that the deceased fell through holes in the flooring of the building under construction at the site which holes were unguarded and uncovered at the time of the accident.

5. Two defences are put forward by the defendant. The first being a defence on the facts, which is, that the holes through which the deceased fell were uncovered at the time of the accident as a result of instructions given by the deceased for them to be uncovered for the purpose of his inspection. Therefore the defendant denies that they were negligent and that if anyone was negligent in the matter it was the deceased.

6. The second defence raised is one of law in that even if on the facts, the court does not find that it was the deceased who gave instructions for the holes to be uncovered, the defendant should not be responsible for the state or condition of premises in the control of a third party to which the deceased was sent to work. In this respect the defendant seek to rely on the decision in the case of Cook v. Square D Ltd and Others [1992] ICR 262.

The factual evidence as to the first defence

7. The evidence relating to the factual defence that it was the deceased who instructed the removal of the covering for the holes in question came from Mr Tung Suet Wan ("Tung") who was the second witness called by the defendant.

8. Tung is an engineer employed by the developer. He had given a witness statement in Chinese (with translation) in this matter dated 9 August 2002. Subject to the qualifications/amendments dealt with below, Tung adopted the contents of his witness statement as his evidence-in-chief. In summary, his witness statement and therefore his evidence is as follows.

9. He was employed by the developer since 1995 and was assigned to this project involving the construction of the building at the site which was to be a 19-storey commercial building. The construction commenced in 1995.

10. When the main structure of the building was completed, there were seven holes on each floor which were reserved for the installation of water, sewage and chiller water pipes. Each hole measured 2.3 metres by 0.8 meters. Before those water pipes and installations were carried out, each of the holes were covered with a cover made with a steel rack bottom and bamboo pieces on top. Each cover measured 2.8 metres by 1.3 metres and was eight cm thick, strong enough to withstand heavy weight so that workers could safely walk over them when covering the holes. There was therefore no railing surrounding each reserve hole.

11. The deceased had inspected the site many times before the accident. On previous occasions, the deceased had brought along a camera to take pictures of the construction at the site. In late April 1999, the deceased had informed him that the deceased would like to take some more photographs of the building being constructed during his inspection for a report when the deceased returned to Hong Kong.

12. The deceased was known to the staff of the main contractor and highly regarded by them as the Hong Kong representative of the project. The deceased could also communicate with the staff of the main contractor since they all spoke Cantonese.

13. He knew that the deceased had inspected the site on the morning of 29 April 1999 accompanied by the staff of the main contractor although he himself (Tung) was not present on that occasion.

14. On the morning of 30 April, the deceased told him that the deceased was not satisfied with his previous inspection because there was too much debris and the site was too dirty to take proper photographs. The deceased also told him that the deceased had requested the workers of the main contractor to remove the debris and clear the site for him to take photographs for his report. The deceased then asked Tung to accompany him (the deceased) to visit the site that afternoon.

15. As a result of the deceased's instructions the workers cleaned and tidied up every floor of the site and also removed the covering boards of the reserve holes on many of the floors on the morning of 30 April so that the deceased could take photographs. The deceased told him (Tung) that the bamboo covers would adversely affect his photo taking and the deceased therefore had requested the removal of the covering boards on various floors of the building.

16. The removal of the covering boards created a certain degree of danger since it exposed workers or anyone else to the risk of falling into the reserve holes thus sustaining severe injuries. The deceased as well as the workers of the main contractor were well aware that under the safety regulations it was improper to remove the covering boards and anyone doing so may be prosecuted. However, since the deceased was a high ranking staff from the Hong Kong project manager, the workers had no choice but to comply with his instructions.

17. At about 4 p.m. on 30 April, Tung accompanied the deceased to the site to take photographs and to inspect the progress of the project. They wore safety helmets for the inspection. They started the inspection from the 15th floor. At that time, Tung noticed that the covering boards of the reserved holes on a number of floors had been removed. At the time of the inspection, there were also two staff of the main contractor with them and another five to six workers were on standby.

18. When they were on the 15th floor, the deceased found some pipes projecting from the wall looking untidy. The deceased then walked over to the workers to tell them to tidy up the pipes. Tung remained where he was, some 10 odd metres from where the workers were. When the deceased spoke to the workers, there was a reserve hole with its covering board removed about one metre behind the deceased and slightly to his left. Suddenly there was a gust of wind and dust coming from the south side (i.e. from the front of the deceased). The deceased raised his arm to shield against the wind and dust. The deceased took one step backwards and fell into the uncovered hole. He screamed as he fell into it.

19. Since the covering boards had all been removed from the 7th to 14th floor, the party then went down the stairs and found the deceased lying on the covering board on the 6th floor.

20. A report was made and an ambulance came to the site and took the deceased to a nearby hospital where he was certified dead after attempts at resuscitation failed.

21. The above is a summary of the contents of Tung's witness statement prepared by solicitors for the purpose of this action.

22. Quite apart from his witness statement in this action, Tung had also given a statement in Chinese to Toplis and Harding (Hong Kong) Ltd dated 18 May 1999 as to how this accident happened.

23. A summary of the contents of that statement given by Tung to Toplis and Harding (Hong Kong) Ltd is as follows.

24. About 28 or 29 April, Tung received a call from the head office in Hong Kong that the deceased will come to Shanghai to visit the building under construction on 30 April. He understood from that that he was asked to bring the deceased to visit the site.

25. At about noon time on 30 April, the deceased arrived at the site on his own. Tung then discussed the progress of the construction with the deceased at the site office. At about 3 p.m. the deceased asked Tung to bring him to visit the building under construction. Because there was still a lot of debris from the 16th to 19th floor, they started the visit from the 15th floor downwards. They took a lift to the 9th floor and then walked up to the 15th floor. On the 15th floor, apart from the two of them, there were also some workers working there. After about 10 minutes inspecting the 15th floor, Tung saw the deceased take a step backwards and fell into a hole which was behind the deceased. At that time Tung was about 10 metres from the deceased and the deceased had his back towards Tung. As soon as he saw the accident, Tung looked into the hole into which the deceased had fallen and saw the deceased lying on a bamboo cover on one of the lower floors. Tung then ran down to the 9th floor then took a lift down to see where the deceased had fallen. Tung found the deceased lying unconscious on the 6th floor over a bamboo cover.

26. An ambulance was summoned and with the help of other workers, the deceased was carried down to the ground floor to await the ambulance. When it came the deceased was taken to the Yan Chai Hospital for resuscitation accompanied by Tung. Resuscitation failed after some 20 minutes. Tung then made a report to the Public Security Bureau. After investigating at the scene, police said that this was a matter for the Labour Bureau.

27. Tung then made arrangements for the delivery of the deceased's body back to Hong Kong after informing the Hong Kong office of the accident.

28. At the end of that statement, Tung was asked a number of questions to elaborate on the statement given by him. Those answers can be summarized as follows.

29. The deceased had visited Shanghai at least two to three times before the accident. Each time, the deceased would contact Tung to inspect the building under construction.

30. Tung did not know which company the deceased represented but only knew that the head office in Hong Kong told him that the deceased would be visiting the site.

31. Apart from visiting the site, Tung did not know if the deceased had any other work to do at the site but that the deceased has not dealt with any affairs of the construction site after his arrival.

32. Tung did not know if the deceased had any problem with his body. Nor can he remember who it was who informed him of the deceased's visit to Shanghai on that occasion but he thought it seemed to be a secretary of the Shunho office in Hong Kong.

33. He gave the names of the developer and the main contractor of the site.

34. As for the hole into which the deceased fell, Tung said that it was a hole to be used for installing water pipes and gave its dimensions.

35. When he was asked whether the deceased knew that there was a hole before he met with the accident, Tung said that he thought the deceased knew because before the deceased fell into the hole the deceased was there for about 10 minutes. Tung further added that the deceased stepped backwards because some dust entered his (the deceased's) eyes and after the deceased used his hands to rub his eyes, the accident occurred.

36. Lastly, Tung said that there was no railing round the hole into which the deceased fell but that there were two L-shaped iron on the two sides of the hole.

37. When Tung took the witness stand, he had certain qualifications/amendments to his witness statement before adopting his statement as his evidence-in-chief. Those qualifications/amendments are as follows.

38. He qualified paragraph 1 of his witness statement saying that when he was at the university he took a course in electrical engineering and in Shanghai there is no distinction made between civil and electrical engineering.

39. As for paragraph 10 of his witness statement, he qualified that by saying he was unable to find the photographs and the camera referred to in that paragraph.

40. As for paragraph 9 of his witness statement, Tung amended that by saying that the deceased did not request the removal of the covering boards to Tung. All that the deceased said to him was that the covers would affect his photo taking. Tung explained that when he said in his statement the deceased requested the removal of the covers, that was a conclusion arrived at by an investigation team at a meeting which took place in the first half of June 1999 and that he was a member of that investigation team at that meeting. When his witness statement was given on 9 August 2002, he may have included that conclusion in his witness statement.

41. Tung went on to say in evidence that the purpose of the meeting of the investigation team in the first half of June was to find out the cause of the accident, who should be responsible for it and to make a report to the government.

42. At the meeting the question was asked why were the protection covers removed. The site foreman, by the name of Mr Chan Ching Kuen, representing the main contractor at the meeting, said they removed the covers at the request of the deceased to make the site look tidy and clean. It was only then, during that meeting, that Tung came to know that the covers were removed at the request of the deceased.

43. As a result a report was prepared by this investigation team and dated 27 June 1999.

44. It is necessary here to digress slightly from the evidence of Tung and to deal with the contents of that report dated 27 June 1999 in order to fully appreciate the cross-examination of Tung which I will be dealing with below.

45. The report is a report addressed to the Labour Bureau of Shanghai Southern City. It starts off reciting that the report is in relation to the fatal accident relating to the deceased which occurred on 30 April 1999 at the site, the course and cause of which had been ascertained by the investigation team comprising of the developer, the main contractor and Shanghai Foreign Economics Engineering Consultancy and Supervision Company (in that order).

46. Next, the report recounts the date of the accident, the scene being the site and the identity of the deceased and that the deceased was a visitor of the developer at the site when the accident occurred.

47. As for the course of the accident, it is stated in the report that in the afternoon of 29 April 1999 the site foreman, Chan Ching Kuen and another worker received notice from "Party A" for every floor of the site to be cleaned and cleared so that the visitor of "Party A" could inspect and take photographs on each of the cleaned floors at the site. As a result cleaning work was carried out by the foremen and other workers on the morning of 30 April until the afternoon of that day.

48. Some time after 4 p.m. that day, the debris had generally been cleared for the 7th to 15th floor. At 4.30 p.m. workers were still cleaning up the 15th floor when the deceased, being the visitor of "Party A", accompanied by Tung came to visit and inspect the 15th floor. Then the report went on to state :

"When photos were about to be taken, at the request of the Deceased, the covering boards of the reserved holes on the 15th floor and the floors below of the Site were removed temporarily. The holes were to be covered again immediately after he finished taking photos."

49. The report then went on to state that at the time there was a reserve hole (2300 mm long and 800 mm wide) behind the deceased. Suddenly there was a strong gust of wind and dust. The deceased took several steps backwards to dodge the wind and dust and fell into the uncovered reserve hole and landed on a covering board on the 6th floor. The others, on seeing the accident and hearing the deceased scream when he fell into the hole immediately went to the edge of the hole and looked down. Then they went downstairs to attempt to rescue the deceased and an ambulance was called. The deceased was taken to hospital by ambulance with Tung accompanying him, but was certified dead at 5.15 p.m. despite attempts at resuscitation.

50. Tung notified the Hong Kong office and made a report of the incident to the Public Security Bureau as well as other government authorities.

51. As for the cause of the accident, it was stated that the covering boards of the reserved holes were temporarily removed so that the deceased could take photographs. That was the reason why the holes were uncovered and because of the sudden gust of wind which the deceased tried to dodge, he accidentally fell into the uncovered hole.

52. At the end of the report, the names of the developer, the main contractor and Shanghai Foreign Economics Engineering Consultancy and Supervision Company appear in that order. There also appear the chops of each of these three parties at the end of the report.

53. It should also be noted that although "Party A" is not expressly defined in the report itself, looking at the entirety of the report and its contents as well as the order in which the names of the three parties appear in that report, it is clear that reference to "Party A" in that report refers to the developer, namely, Shanghai Shun Ho Property Development Ltd.

54. Coming back now to the evidence of Tung, he went on to give evidence as to the statement given by him to Toplis and Harding (Hong Kong) Ltd. His evidence-in-chief as to that statement was that it was taken on 18 May 1999 which was before the meeting of the investigation team in the first half of June.

55. That statement was taken by a Mr Lam of Toplis and Harding and was written by Mr Lam including the answers given by Tung. He had some difficulty understanding the putonghua of Mr Lam. Moreover Mr Lam did not ask him whether the hole had a cover and did not ask him why the hole was not covered.

56. Tung also explained that in his last answer, the L-shaped iron was to support the cover for the hole.

57. Tung was cross-examined by counsel for the plaintiff.

58. In cross-examination Tung said that he was at the site office all the time but that he did not see the deceased at the site on 29 April. It was only at the meeting of the investigation team in the first half of June 1999 that he was told by the main contractor that the deceased did go to the site on 29 April. Tung agreed that this was not put down in his witness statement.

59. When asked about paragraph 9 of his witness statement, where it says :

"Mr Yu told me that the bamboo covers would adversely affect the effect of his photos as they were large, dirty and untidy. He had therefore requested for the removal of the covering boards on various floors of the building."

Tung answered saying that he had already explained that in his evidence-in-chief by saying that the first part of that statement was told to him by the deceased but that the second part of it was the conclusion arrived at by the investigating team at the meeting in the first half of June. He therefore conveniently put that conclusion in his witness statement.

60. When cross-examined about the reserve holes on each of the floors of the building under construction, Tung said that there were seven reserve holes on each floor. He further agreed that all seven holes for all the nine floors from the 7th floor to 15th floor were uncovered when the inspection on the 15th floor took place. That was quite unusual for him but that he did not ask for the reason why they were uncovered because as soon as he looked at it he understood that the covers were removed for the purpose of photo taking and the visit. He then corrected himself to say that he did not mean to say that at the time he understood all 63 holes were uncovered.

61. When he was asked who had given the instructions to remove the cover boards, Tung answered that he did not know at the time nor did he ask because they just went up in a hurry and that the workers from the main contractor were far from them since if he had asked, it would have been the workers of the main contractor whom he would have asked.

62. Tung agreed that the uncovered holes had no railings to fence them off and was obviously dangerous.

63. He did not know when the covering boards were removed but at the investigation team meeting in the first half of June, he came to know that the boards were removed on 29 April.

64. When asked about whether any photographs were taken prior to the accident, Tung said that he did not take any photographs on the 15th floor on 30 April.

65. When he was asked in cross-examination about the statement which he gave to Toplis and Harding (Hong Kong) Ltd, Tung said that when he gave that statement he had no idea as to why the deceased turned and fell into the hole. However, at the investigation meeting in the first half of June, the question was asked as to why the deceased suddenly turned. The investigation team had to analyse the cause of the accident. In analysing the reason, the representative from the main contractor said that there was a gust of wind blowing from the south and that was the reason why the deceased fell as he raised his hand to ward off the gust and turned.

66. Tung went on to explain that as he was standing at the time of the accident on the northernmost position, he did not feel the gust of wind as much as the workers from the main contractor.

67. Tung was then cross-examined as to the contents of the investigation report dated 27 June.

68. He agreed that at the investigation meeting held in the first half of June, he was told by the main contractor that the covers were removed on 29 April. But this was not what was contained in the report. He agreed that what was described and contained in that report was not what had actually happened and therefore not entirely true. He further admitted that at the time the report was prepared he knew that its contents were not entirely correct and true, specifically the time and the order of the removal of the covers as stated in the report were incorrect.

69. His explanation for that was that the report was prepared as a result of the discussion and the meeting which took place between the three parties who made up the investigation team. That investigation as to the cause of the accident concerned the main contractor. That if the truth as was discussed at the investigation meeting in the first half of June was revealed, the main contractor would have to shoulder very heavy responsibility. Therefore the report was made to reflect something which was not true.

70. He agreed that the chop of the developer was put on the report and when he was asked why he had allowed the chop of his company (the developer) to be put on a document the contents of which he knew to be untrue, he said that there was a special reason for it which is that if what the main contractor had said was reflected in this incident, then the main contractor and the deceased would both be held responsible. As a result a compromise was reached between the main contractor and the developer. That was done to excuse the main contractor and to avoid harm done to the deceased. He further added that the real reason was not to deceive the government but that the main consideration of the developer was to protect the deceased, a visitor, from unnecessary harm.

71. That was why the report stated that the holes were uncovered for a short period of time and not for the longer period as instructed by the deceased. This was done so as not to show an obvious violation of safety regulations.

72. As a result of this consideration the developer and the main contractor agreed to make the report in this way.

73. In re-examination Tung said that at the time of the inspection and visit by the deceased, the 16th to 19th floor were not ready for inspection because those floors still had a lot of debris. It was only the 15th floor and below that had been cleared of debris and would be inspected.

74. In answer to a question by the court as to why the investigation team only met in the first half of June, Tung answered saying that in the first half of May he was busy dealing with the return of the deceased body to Hong Kong involving much complicated procedure. In the second half of May he was busy dealing with over 10 government departments in Shanghai all of which were investigating this accident. Therefore it was only in the first half of June that the three parties were able to sit down to discuss the accident and to make its report.

ASSESSMENT OF THE EVIDENCE

75. Having seen the witness Tung in the witness box and heard his evidence in this matter, I have come to the conclusion that he is neither an impressive nor a reliable witness in so far as the truth of the matter is concerned.

76. What is contained in his witness statement in this matter, bearing in mind that his witness statement was taken in Chinese, taken from him and prepared by solicitors for the defendant, bears little resemblance in a significant manner (and which goes to the very crux of the issue) to the evidence which finally came from him in the witness box. While the witness statement, when read as a whole, indicates that Tung had first-hand knowledge that the deceased had given instructions for the covering boards to be removed for the purpose of taking photographs, what transpired from the evidence of Tung given from the witness box was that in fact Tung only learned that those instructions had been given by the deceased when he was at the meeting in the first half of June between the three parties of the investigation team and when he was told of same by Chan Ching Kuen, the site foreman and representative of the main contractor. Nothing to this effect appeared or was even indicated in his witness statement.

77. His witness statement also contradicts the contents of his statement given to Toplis and Harding (Hong Kong) Ltd as well as the contents of the investigation report dated 27 June 1999.

78. As the evidence on this issue stand now, Tung's evidence that it was the deceased who had given the instructions for the covers to be removed can only be hearsay evidence. The site foreman of the main contractor, Chan Ching Kuen, was not called as a witness in this case. Accepting that hearsay evidence can be admissible in a civil case (as no objection has been taken to that evidence by the plaintiff), it nevertheless remains for the court to attach what weight it sees fit to that evidence.

79. In the present case, I am unable to place any weight on that evidence in all the circumstances of this case when I take into account the evidence given by Tung in cross-examination as to how the investigation report of 27 June 1999 was prepared in particular, how the three parties to that report was able not only to make a report and append each of their chops to the report with full knowledge of the falsity of its contents, but in effect to conspire to conjure up such falsity in that report.

80. Tung is himself in the very midst of the falsity contained in the report if his evidence is taken at face value.

81. When he gave that evidence in cross-examination, it was eminently clear to me from his demeanour and attitude that he was wholly unabashed at having been himself involved not only in the making but also in agreeing with others to make a report which was false in a material particular. Moreover, he was ready and prepared to give explanations to justify why the parties decided to make such a false report.

82. In all these circumstances, Tung has lost all credibility as a witness.

83. Accordingly, I am not prepared to accept the evidence (in whichever form it comes) from the defence that it was the deceased who had given the instructions for the covering boards to be removed. Nor am I prepared to accept that the deceased had visited the site on 29 April on his own.

FINDINGS OF FACT

84. From all the evidence before me, including those admissions of the defendant, I find the following facts :

(1)	the deceased was an employee of the defendant at the material time of the accident;
(2)	the defendant was engaged as the project manager of the project being the construction of the building at the site;
(3)	on 30 April the deceased travelled to Shanghai in connection with his employment to visit the building under construction at the site;
(4)	when the deceased was on the 15th floor of the building being constructed at the site, the deceased accidentally fell into a reserve hole on that floor;
(5)	the reserve hole into which the deceased fell was uncovered and unguarded by any railings or other form of protection;
(6)	the deceased fell through other reserve holes on the same spot from the 14th through to the 7th floor, all of which were uncovered and landed on a cover which was covering the reserve hole located on the same spot on the 6th floor of the building being constructed; and
(7)	the deceased died later the same day in hospital from that fall.

THE SECOND DEFENCE

85. It is submitted by the defendant that even if it is found that the deceased had nothing to do with the removal of the covering boards, the defendant should not be found to be in breach of its non-delegable duty to take reasonable care for the safety of the deceased in the light of all the circumstances of the case.

86. Those circumstances are that the building site was in Shanghai, some 1,345 miles from Hong Kong which was occupied by the main contractor with its own staff and foreman. The nature of the building on the site being a 19-storey building under construction for which covering boards for the reserve holes were required under Chinese law. The deceased being an experienced project manager could have fully realised the risk of uncovered reserve holes on the site. The nature of the work the deceased was required to do as a project manager could have been done by him at the site office without the need to enter into the building under construction and that the defendant was under no duty to decide on every detail of the deceased's job at the site. The defendant only provided project management services and exercised control over the site through the deceased, being its representative. The deceased, who had visited the site on at least two or three previous occasions ought to have known of the state of the building under construction.

87. Reliance is placed by the defendant on the decision in Cook to say that any suggestion that Hong Kong based employers have any responsibility for the daily events of a building site in Shanghai, some 1,300 odd miles away, owned and managed by reliable companies "has an air of unreality". The defendant contends that this would cast far too high a responsibility on Hong Kong based employers.

88. The facts of Cook's case were that the employee, an electronics engineer started working for U.K. based employers in 1982. He was sent on an assignment to complete the commissioning of a computer control system in Saudi Arabia. His work there was carried out in a control room housing the computers and was largely sedentary. The area had a specially constructed floor, each tile being removable for access to the wires and cables underneath. In March 1982 the employee slipped as a result of a raised floor tile which had been left unguarded.

89. It was on those facts that the Court of Appeal in the U.K. held on appeal that although the employer had a non-delegable duty to take all reasonable care to ensure the safety of the employee, to hold the employers responsible for the daily events on a site in Saudi Arabia owned and managed by reliable companies lacked reality and the circumstances clearly established that the employers had not delegated their responsibility and the accident to the employee had not been caused by any breach of duty on their part.

90. The facts of Cook's case is very different from the present case. The office in which the employee in Cook's case worked was in the control room. In the normal course of things, there would be nothing to suggest that there should be any hazards with the floor in respect of that office. However, in our present case, the building was a building under construction fraught with the normal kinds of hazards associated with construction works which ought to have been known to the defendant since they were engaged as the project manager for the construction project.

91. There is no evidence of any specific steps taken by the defendant to ensure the reasonable safety of the deceased when he was sent to check on the progress of the works. The defendant ought to have known that the work of the deceased must necessarily involve his inspection of the building under construction.

92. Moreover, there is evidence in this case that the defendant and the developer are both subsidiary companies within the umbrella of the Magnificent Estate group of companies headed by a publicly listed company in Hong Kong. As such, the defendant could have very much more say and control over the safety aspect and procedure adopted at the site.

93. The inference which I can and do draw from all this is that the defendant was content to leave the safety aspect of the building under construction to the main contractor or developer to see to when the deceased was making his inspection of the building under construction.

94. Unfortunately for the defendant, the main contractor and/or its staff woefully failed in this respect for when the covers of the reserve holes were removed, there was not even some form of guard railings put in place to prevent persons from falling into the reserve holes.

95. Therefore since the defendant have seen fit to delegate their non-delegable duty to a third party, they will need to bear the consequences for the failure by that third party and on that basis be liable to the plaintiff for the accident to and the death of the deceased.

CONTRIBUTORY NEGLIGENCE

96. The defendant has also raised the issue of contributory negligence on the part of the deceased. The defendant submitted that the deceased was himself partly to blame for the accident because with the realization that the reserve holes were not covered (even if he did not give such instructions to uncover them) he nevertheless stood too near to the reserve hole into which he fell.

97. The evidence was that a sudden gust of wind blew some dust into the eyes of the deceased when he was on the 15th floor during the inspection. When he raised his hands to shield his face from that sudden gust of wind, he lost his balance and fell backwards into the reserve hole behind him. The evidence was that he was standing about one metre from the edge of that hole.

98. On that evidence I cannot see how the deceased was himself to blame. It was a sudden gust of wind, apparently with no prior warning. His instinctive reaction caused him to lose his balance. Standing one metre away from the hole was not per se careless. It was a combination of all those matters, for which there was no prior warning, that brought about the accident because the holes had been uncovered.

99. Accordingly, I do not find the deceased to have been contributorily negligent.

QUANTUM

100. I turn now to deal with the question of quantum.

(a) Bereavement

101. There is no dispute as to the statutory amount of $150,000.00 under this head of damage and the same will be awarded.

(b) Special Damages

102. Special damages have been agreed between the parties in the sum of $8,300.00 being for funeral and burial expenses and the same will be awarded.

(c) Pre-trial loss of dependency

103. Before the accident, the deceased was earning an average monthly salary of $63,456.26 as the project manager of the defendant. This average monthly salary was arrived at by reason of the fact that he was paid 13 months' salary per year, his actual monthly salary being $58,575.00 per month.

104. The dependents of the deceased were his wife (now widow) being the 1st named plaintiff, and his two children, Ronnie born on 21 January 1981 and Rita born on 10 May 1988.

105. It is not disputed that before the accident, the deceased contributed $39,000.00 from his salary for the maintenance and upkeep of the family being the sole breadwinner. This works out to be 61% of his average monthly pre-accident salary.

106. It is also not disputed that the family expenses are shared between the members of the deceased family including the deceased in the following proportion :

Deceased	$9,000.00	23.08%
The 1st plaintiff	$9,000.00	23.08%
Ronnie Yu	$10,000.00	25.64%
Rita Yu	$11,000.00	28.20%

107. There is evidence from the defendant before me given by the first defence witness, Mr William Cheng Kai Man that because of the economic downturn in the past few years, the defendant had stopped paying its staff of managerial rank any double pay at year end after 31 December 2001. That evidence has not been disputed by the plaintiff and I accept same.

108. Accordingly, the pre-trial loss of dependency can be worked out as follows :

(i)	From accident to 31 December 2001 :
	The 1st plaintiff
	$63,456.25 x 61% x 23.08% x 32 months = $285,884.11
	Ronnie Yu
	$63,456.25 x 61% x 25.64% x 32 months = $317,593.96
	Rita Yu
	$63,456.25 x 61% x 28.20% x 32 months = $349,303.81
(ii)	From 1 January 2002 to trial/judgment :
	The 1st plaintiff
	$58,575 x 61% x 23.08% x 25 months = $206,166.43
	Ronnie Yu
	$58,575 x 61% x 25.64% x 25 months = $229,034.10
	Rita Yu
	$58,575 x 61% x 28.20% x 25 months = $251,901.78

Totally, their respective pre-trial loss of dependencies come to :

The1st plaintiff :	$285,884.11 + $206,166.43 = $492,050.54
Ronnie Yu :	$317,593.96 + $229,034.10 = $546,628.06
Rita Yu :	$349,303.81 + $251,901.78 = $601,205.59

(d) Future loss of dependency

109. Although it was pleaded in the Statement of Damages by the plaintiff that there would have been some increase in the salary of the deceased had it not been for the accident resulting in his death, such increase in wages has not been contended for by counsel for the plaintiff at the trial, either in his opening or in his closing submission.

110. In the absence of any such contention, I will adopt the same basis for the multiplicand as was used in calculating the pre-trial loss of dependency for the period 1 January 2002 to trial.

111. The major dispute between the parties under this head concerns the proper multiplier to adopt in this case. The plaintiff contends that a multiplier of nine is reasonable on the basis that the deceased was 50 at the date of the accident and would likely continue to work until 65.

112. The defendant on the other hand argues that seven is appropriate. In so saying, the defendant submits that the deceased would in all likelihood have saved up enough for his retirement by the age of 60 by which time both his children will have finished their education and be working thereby no longer dependent on him.

113. While it is true that by the time the deceased would have reached 60 years old, his son will be 28 and the daughter 21. This factor, and the fact that the deceased job as a project manager requires him to travel frequently to Mainland China to visit construction sites prompted the suggestion by the defendant that it is therefore likely that the deceased would retire by age 60 and live off his savings and MPF.

114. On the other hand, I need also to take into consideration that the work of the deceased is not of a manual nature as well as the fact that by age 60 the deceased would have acquired substantial experience in his line of work such that he may be of considerable value to any organization employing him. The travelling aspect of his job, which is probably the only tiring part of it, may be left to a younger person to undertake.

115. I am therefore not persuaded by the defendant's argument that the deceased in this case would likely retire or not continue to work after age 60.

116. On that basis, and viewing the comparables for the multiplier cited to me in submission by both sides, I am of the view that nine is a reasonable multiplier to adopt in this case.

117. As for the son, Ronnie, I accept the evidence of the deceased's widow that he has now obtained his Bachelor degree in social work and intends to pursue a Master degree given his good academic results. The Master degree would be achieved in May 2005. It is likely, had it not been for the accident, the deceased would have continued to support Ronnie until he had obtained his Master degree and found work.

118. Accordingly, the post trial loss of dependencies are as follows :

(i)	The 1st plaintiff
	$58,575 x 61% x 23.08% x (108 - 57 months) = $420,579.50
(ii)	Ronnie Yu
	$58,575 x 61% x 25.64% x 24 months = $219,872.74
(iii)	Rita Yu
	58,575 x 61% x 28.20% x (108 - 57 months) = $513,879.64

(e) Loss of MPF

119. There is a claim for loss of MPF as a separate head of damages on its own notwithstanding that there is also a claim for loss of accumulation of wealth.

120. In Lam Pak Chiu v. Tsang Mei Ying (2001) 4 HKCFAR 34, the Court of Final Appeal made it quite clear that an accumulation of wealth was "the amount which a deceased would have saved during his working life, not spent during his retirement and died possessed of".

121. There is therefore no room to consider loss of MPF as a separate head of damage on its own but that must be a factor to be taken into account when assessing the award under loss of accumulation of wealth. That is the approach I shall adopt.

(f) Loss of accumulation of wealth

122. When the deceased died, the net principal value of his estate was stated to be $1,653,372.49 in the Letters of Administration. This figure was arrived at by deducting the amount of his debts ($268,540.01) which the deceased owed to the Hong Kong Chinese Bank Ltd and the HSBC from the provisional principal value of his estate in the amount of $1,921,912.50.

123. The major item which made up his estate was the 4,400 share which the deceased held in Valiant Construction and Development Co. Ltd ("Valiant"), the service company used by the deceased to hold the property, Flat D, 8th floor, Block 2, Juniper Mansion, Whampoa Garden, Hung Hom, which was the family home where the deceased and his family resided before his death. The family home was under mortgage and the deceased was paying off the monthly instalment of the mortgage loan in the amount of $24,000.00 per month to the Hong Kong and Chinese Bank Ltd.

124. After the death of the deceased, his widow had to obtain re-financing from the Hang Seng Bank in the amount of $1,680,000.00 to pay off the mortgage loan. Ultimately the family home was sold off and Valiant was voluntarily wound up.

125. There is also evidence from the deceased widow which I accept that the deceased was neither a smoker nor a drinker and he did not gamble. From all the evidence before me, the picture emerges that the deceased was a typical family man, hardworking in order to cater to all the needs of his wife and children.

126. Admittedly as the evidence now stand they do not show very much cash savings by the deceased at the time of his death. That is hardly surprising when account is taken of the fact that at the time of his death, the deceased, being the sole breadwinner in the family, was bringing up two children, supporting his wife and at the same time paying off the mortgage on the family home.

127. On the assumption that the deceased would be able to continue in his job as a project manager which is likely to be so, I take into account the fact that when his two children become independent of him, and when the mortgage on the family home is paid off, the deceased will likely be able to save up much more of his salary to cater for his retirement.

128. Moreover, the defendant company for which the deceased work would be contributing $1,000.00 per month as well as another $1,000.00 being taken from the deceased monthly salary for the purposes of MPF. At the end of his notional working life, had it not been for the accident, there would have accumulated $360,000.00 in the MPF alone. This figure does not even take into consideration growth (whether by way of capital growth or interest yield) in the MPF investment fund itself over the years.

129. Needless to say, much of the money whether saved up from his salary in the later years of his working life (when his children become independent) or whether from the MPF fund when the deceased retires, will be spent by the deceased to support himself and his wife in his retirement years. However, it is likely that the family home, once the mortgage is paid off, will remain the major asset of the deceased's savings during his entire life which will remain at the end of his notional life.

130. There is no evidence how much that property was worth although there is evidence that the outstanding mortgage loan which had to be paid off by the deceased widow came to some $1,680,000.00. The figure pleaded in the Statement of Damages for loss of accumulation of wealth comes to just under $700,000.00. This is probably on the low side when one considers that at the end of the day, when the deceased notional life is over, there would likely be one piece of real asset which is the family home which will be left intact to be inherited by the rest of his family. However, the plaintiff is bound by his pleadings.

131. I have also been urged by counsel for the defendant to take into account the accelerated receipt under this head of damage and to accordingly adjust the figure. Even taking that into account $700,000.00 may yet be on the low side. No application was made to amend that figure. In the circumstances, I can do no better than to award $700,000.00 under this head of damage.

(g) Loss ability to provide gratuitous service

132. The plaintiff claims $100,000.00 under this head. However the plaintiff lacks the evidence to substantiate such a claim.

133. The evidence of the deceased's widow in cross-examination was that the deceased would talk to the children and ask about their academic results and buy them clothes. She also said he had no habits when he was not working.

134. There was no evidence that the deceased did any household work or repairs and no evidence that he helped the children with their work either.

135. Notwithstanding the evidence, the defendant is agreeable to a sum of $10,000.00 under this head of claim. That is the amount I shall award.

(h) Interests

136. Interests on the award for bereavement would normally attract the rate payable in suitors fund. However, because the suitor's fund rate at the moment is far less than the 2% normally awarded to general damages for pain and suffering in personal injury cases, I shall exercise my discretion to award interests at 2% p.a. from the date of death.

137. Interests on pre-trial loss of dependencies and special damages will be at 4% (being half judgment rate) from the date of the accident until judgment.

138. In assessing interests, I shall take into account the payment of ECC compensation in the sum of $1,378,125.00 paid in 2000.

(i) Summary

Bereavement		$150,000.00
Special damages		8,300.00
Pre-trial loss of dependency (total)		1,639,884.20
Future loss of dependency (total)		1,154,331.90
Loss of accumulation of wealth		700,000.00
Loss of gratuitous service		10,000.00
Interest on bereavement		14,250.00
Interest on special damage and pre-trial		51,311.25
loss of dependency
	Sub-total :	$3,728,077.35

139. From this sub-total will have to be deducted the Employees Compensation amount of $1,378,125.00 which gives the final sum of $2,349,952.35.

CONCLUSION

140. There will accordingly be judgment to the plaintiff in the sum of $2,349,952.35. The judgment sum is to be paid into Court by the defendant within 14 days pending the plaintiff's application for payment out since infants' interests are involved in this matter.

COST

141. There will be a cost order nisi that the defendant do pay the plaintiff's costs of this action, to be taxed if not agreed, including the plaintiff's application for payment out of the judgment sum. The plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.