KEUNG PING SING v. HONG KONG AIR TERMINAL SERVICES LTD.

HCPI 373/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 373 OF 1996

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J U D G M E N T

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1. The Plaintiff's claim against the Defendant is for damages for personal injuries suffered by him in the course of his employment with the Defendant at about 10.30 p.m. on 29th June 1993. It is his case that this was caused by the negligence and breach of duty on the part of the Defendant.

2. On the issue of damages, I was informed by counsel in the course of the first day of trial that the parties had come to terms as to what the damages should be in this case. Subject to the issue of liability being determined in the Plaintiff's favour, the quantum of damages agreed by the parties, net of the Employee's Compensation award and inclusive of interest until judgment, was in the sum of $808,561.00. That being the agreed damages, the only issue that I am concerned with is the issue of liability.

3. I heard evidence from the Plaintiff himself and also from a colleague of his, Li Kwok Cheong. I also heard evidence called by the Defendant. The Defendant called Ngan Hon Man, a supervisor who worked for the Defendant at the material time, Patricia Chan Lee Pui Hing ("Patricia Chan"), who was responsible for personnel, and Charles Lee Chi Tseong ("Charles Lee"), who was the head of the Training and Safety Department of the Defendant at the material time. The only person who gave evidence before me as to what actually happened at the material time when the Plaintiff sustained his injuries was the Plaintiff himself.

4. The Plaintiff gave evidence that at about 10.30 p.m. on 29th June 1993, he was working with his colleague Lam Chung Shing at the Air Mail Centre ("the AMC") at the Hong Kong International Airport at Kai Tak Kowloon. Their foreman, Lam Wai Keung, had instructed them to cover a metal container containing airmail with a plastic sheet provided by the Defendant. This was part of their duties. There were occasions when cargo handlers like the Plaintiff were asked to protect the airmail placed inside the metal container from rain by covering it with a plastic sheet and knotting it together. This was done at the AMC. At the time, the metal container was placed on a trolley with wheels which was commonly referred to in the trade as a dolly. Photographs of a type of dolly and container were produced in evidence in Bundle D pages 32-35.

5. The Plaintiff said that the container that was used at the material time was longer and bigger than the ones shown in the photographs. At the material time, the metal container that was placed on the dolly was beside a raised platform which was referred to as the AMC platform. The Plaintiff was standing and working at ground level whilst his colleague Lam Chung Sing was standing and working on the AMC platform. Lam Chung Shing threw a plastic sheet whilst he was standing at the corner of the platform diagonally across the container, i.e. from corner to corner. The Plaintiff was adamant that it was thrown from corner to corner of the container rather than across the narrowest part of the container as was shown in the photographs in Bundle D of a demonstration done subsequently.

6. The Plaintiff said that Lam Chung Shing was not able to throw it far enough to cover the entirety of the container. Lam Chung Shing threw the plastic sheet again but it was blown back by the wind. The plastic sheet did not reach the corner of the container so the Plaintiff had to climb up to get hold of the plastic sheet and to pull it down. He stepped onto the frame of the dolly with his right foot in order to gain height and to reach over to pull the plastic sheet and spread it out over the top of the metal container. Because there was limited room to step on the frame of the dolly, he raised his left leg and braced it against the wall of the container for balance. As he could not maintain his balance he fell onto the ground fracturing his left distal radius and injuring his knees. He said that he fell sideways at an angle and the injuries were caused when he fell down. He was sent by taxi to the hospital for treatment of his injuries. He was discharged from hospital on 7th July 1993.

7. The Plaintiff was cross-examined at length. It was suggested to him that he was at the AMC platform at the material time and it was from there that he fell. The Plaintiff denied this and was adamant that he fell when climbing up to reach the plastic sheet from the dolly in the manner as set out above.

8. He was cross-examined about his application filed by his solicitors on 6th June 1995 in his Employees' Compensation Case No. 301 of 1995 where it was stated that he fell "from a working platform at a height of approximately 7 feet". He denied that he told his solicitors that he fell from the platform. He said his Cantonese was not good enough for him to express himself. In any event, it is clear from the other evidence that the platform was no higher than 40 inches and nowhere near 7 feet. It seems that he was unable to express himself clearly to his solicitors in Cantonese.

9. He was also cross-examined about the contents of an injury report compiled by the Defendant, exhibit D1, where it was stated that the Plaintiff fell down from the AMC platform. I shall come back to this injury report later.

10. The Plaintiff was also cross-examined about the statement he made on 6th September 1995 in the Employees' Compensation Case where he said he stepped on one of the wheels to climb up to the top of the box and that he fell from the top of the box. That was a statement taken in English apparently interpreted to him, probably in Cantonese. The Plaintiff's native dialect is Hoklo. He is not proficient in Cantonese. He does not understand Cantonese fully. He said that he understood a few 10% of it. He also said that his solicitors must have misunderstood him when taking a statement for the Employees' Compensation Case as he did not stand on the wheel but was standing on the dolly. He was unable to express himself in Cantonese and the interviewer, according to him, misunderstood him as he never stood on the wheel or on top of the metal box.

11. Having seen and heard the Plaintiff, I mean no disrespect to him when I say that he did not strike me as a man of high intelligence or sophistication. He had difficulty in expressing himself clearly even in his own native dialect and in answering question directly. It would have been even more difficult for him in Cantonese. I am convinced that he was not being evasive in answering questions but that he was a witness who had difficulty in answering questions directly.

12. I am satisfied that the Plaintiff is a witness of truth. He is, in my view, an honest witness. I accept his evidence. This is despite the apparent inconsistency in his statement to his solicitors for the Employees' Compensation claim and in the application in the Employees' Compensation claim. I find as a fact that the Plaintiff fell not from the AMC platform but whilst climbing up from the edge or corner of the dolly. I find that his colleague Lam Chung Shing had thrown the plastic sheet in the manner that the Plaintiff described in evidence but that it was not thrown far enough to cover the entirety of the container and was re-thrown by Lam Chung Shing. But it still did not reach the corner of the container so the Plaintiff climbed up to get hold of it. He stepped on the frame of the dolly with his right foot and he used his left leg to brace it against the wall of the container for balance. He fell because he could not maintain his balance and sustained the injuries to his left arm and knees. These are my findings of fact. This is essentially the Plaintiff's case as particularised in the Plaintiff's Answer 2(a)(i) of the Answer to the Request For Further and Better Particulars of the Amended Statement of Claim which said Answer is dated 23rd April 1997.

13. As regards the injury report, exhibit D1, this consists of two portions, the upper portion being typed and the lower portion in manuscript form. On the evidence, the typed portion was done by the duty supervisor Bruce Lee shortly after the accident, either the same evening or, as is more likely, the next day. It was then handed over to the Personnel Department. It is stated in the upper portion that the Plaintiff fell down from the AMC platform. But it is clear that the informant was not the Plaintiff as he went to hospital after the accident. The informant was probably his work colleague Lam Chung Shing. However, the Plaintiff said that Lam Chung Shing did not see him fall nor did he tell Lam Chung Shing that he had fallen from the AMC platform. I believe the Plaintiff. Despite serving a witness statement of Lam Chung Shing, the Defendant has not called him to give evidence before me and I must ignore his witness statement.

14. The lower portion of the injury report was written by Charles Lee who gave evidence. It was written on 15th December 1993 after the Plaintiff returned to work. It is stated there that the injury was caused when he fell down from the platform and it is also stated that he could have tripped on polythene sheet and fell down. Charles Lee talked about the practice of interviewing injured persons and what he wrote down was information he got during the interview. He did not have any particular recollection of the interview with the Plaintiff which is understandable, considering that it was some 5 years ago. The Plaintiff said in evidence that the only thing that was said during this interview was that he was asked if he fell down when spreading a plastic sheet and he answered "yes". Charles Lee frankly conceded that during the interview, which was in Cantonese, it could have been the situation that it was he who asked the Plaintiff whether he fell when spreading a plastic sheet. That was, after all, what was already contained in the upper portion of the report. I prefer the Plaintiff's version as regards this interview. I find that he did not tell Charles Lee that he fell from the AMC platform. Charles Lee had no particular memory of this interview and he accepted that the way the Plaintiff communicated to him was mostly by gestures.

15. It is trite law that the duty of an employer to his employees is to take reasonable care for their safety. The duty is personal to the employer and is non-delegable. That is the duty owed by the Defendant to each of its employees including the Plaintiff. All the circumstances relevant to the Plaintiff, including the fact that he is not as tall as some of his other co-workers, must be taken into account. It is a duty to the Plaintiff as an individual.

16. In this case, the Defendant's duty was, inter alia, to provide a safe system of work and to provide adequate supervision over its employees including the Plaintiff. In planning a system of work, the Defendant must take into account the fact that workers may become careless about the risks involved in their daily work. (See Munkman on 'Employer's Liability' 12th ed. p.105). Lord Oaksey helpfully said in General Cleaning Contractors Ltd. v. Christmas [1953] AC. 180 at 189 as follows:

"In my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen. It is, I think, well known to employers, and there is evidence in this case that it was well known to the appellants, that their workplace are very frequently, if not habitually, careless about the risks which their work may involve. It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a board room with the advice of experts. They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition."

17. I go on to consider whether there was a breach of duty on the part of the Defendant. The Plaintiff also gave evidence that the method he used at the material time to place the plastic sheet on the container was normal and well-known to the foreman who had observed it on numerous occasions. The cargo handlers were not prohibited from climbing up or standing on the dolly in order to perform the job. Li Kwok Cheong who also gave evidence confirmed that there was no specific instruction given by the Defendant prohibiting cargo handlers from stepping on the dolly in order to pull down the plastic sheet. Although the plastic sheet was re-thrown, there were sometimes windy conditions and the plastic sheet being light did not reach over the other end of the container. It was often required that cargo handlers climbed up the dolly, i.e. raised one foot and braced it against the container to pull the plastic sheet considering the height of the metal containers. This was a common practice. I accept both the Plaintiff and Li Kwok Cheong's evidence on this and find that this was a common practice. This was a method commonly used by cargo handlers when standing at ground level to place plastic sheeting over the container. I prefer their evidence to that of Charles Lee who said that in the training of workers, they would be told not to step on the dolly or movable platform.

18. The Plaintiff is shorter than Li Kwok Cheong. Ngan Hon Man, the supervisor, is 5 feet 9 inches tall. Li Kwok Cheong is shorter than that. Ngan Hon Man agreed that the Plaintiff was several inches shorter than Li Kwok Cheong. It is obvious that a cargo handler of the Plaintiff's height would have to reach even further up to pull down the plastic sheet when it was not thrown far enough by the other co-worker to cover the container. Ngan Hon Man said that he had not seen cargo handlers step on the dolly to reach up for the plastic sheet although he acknowledged that it wouldn't be unusual or surprising if he had not seen it. I find it difficult to accept that he had not seen this before considering that he was a supervisor for 10 1/2 years. It was a common practice and I do not believe him when he said that he had not seen cargo handlers step on the dolly to reach up for the plastic sheet.

19. Charles Lee said that he did not think that it was a proper work procedure for the staff to stand with one foot on the corner of the dolly with the other leg raised on the side of the container to brace himself to reach across the top of the container. But he acknowledged that some of the staff stood on the corner of the dolly for convenience of work. He said that that would be a convenient way for the staff to reach the plastic sheet on some occasions. The important thing is that he also said that it was simply left to the staff to decide if they did it or didn't. It was also his evidence that no specific instruction was given to workers as to the method to be employed by them in covering the container with a plastic sheet. It was regarded as a simple step.

20. In my judgment, there was inadequate supervision by the Defendant of its employees. The dolly was on wheels with a metal container placed on it. The dolly was movable as it was not fixed on the ground. It was, in my judgment, an obvious danger to stand on the dolly. This was acknowledged also by Patricia Chan in her evidence. It was even more dangerous to also brace one foot against the side of the container. The container was also movable as it was simply placed on the dolly. It was not fixed or secured on the dolly.

21. I respectfully adopt what Lord Reid said in General Cleaning Contractors Ltd. v. Christmas (supra) at 194:

"Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required."

What he said is, in my view, applicable in this case. The cargo handlers like the Plaintiff should have, in my view, been provided with something like a raised platform or step ladder to ensure a stable surface on which the Plaintiff could stand and attain the required height to enable him to reach over the top of the container to pull the plastic sheet down. Nothing of that sort was provided. The dangerous practice was known to the supervisors yet they failed to stop it.

22. In my judgment, there was a breach of duty on the part of the Defendant in that it failed to provide the Plaintiff with a safe system of work and also failed to provide adequate supervision over the Plaintiff.

23. I was also referred to Sun Wan Co. v. Ng Kam [1988] HKC 358. In that case, it was held by the Court of Appeal that the Plaintiff did not perform his task in a dangerous way just to save himself trouble. He was doing it in that way to proceed with his employer's business in the way that was condoned and tacitly encouraged by his employer. The employer could not be heard to say that his employee was negligent in carrying his work in that manner. It was held that there was no room for a finding that the Plaintiff ought to have taken his own precautions to make the condoned unsafe system more safe. Hence, there could be no contributory negligence on the part of the Plaintiff.

24. I find that case helpful. In this case, the Plaintiff was at the material time doing his job in the dangerous way which was condoned by the Defendant as it was a common practice known to the supervisors. There can, in my view, be no question of any contributory negligence on the part of the Plaintiff in this case.

25. In my judgment, the Plaintiff has proved his case. The Plaintiff's injuries were caused as a result of the Defendant's negligence. I give judgment to the Plaintiff for damages in the agreed sum of $808,561.00 with costs to be taxed in accordance with Legal Aid Regulations.