LAU TING KEUNG v. CHAN WAI YING t/a WAI SHUN ENGINEERING CO AND ANOTHER

HCPI 284/2015

[2019] HKCFI 992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 284 OF 2015

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J U D G M E N T

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The claim

1.  The plaintiff (“P”) was at the material time a welding worker. On 19 May 2011, while working at a site at No 50 Wang Lee Street, Yuen Long, the New Territories (the “Site”), he had an accident (the “Accident”) and suffered injuries.  This is his claim for damages.  Quantum is not in dispute. What is in dispute is the question of liability which turns on factually how the accident took place.  That, together with the suitability of the use of a ladder (the “Ladder”) at the time of the Accident, are the main issues in the present claim.

The Site

2.  On the day of the accident, the 2^nd defendant (“D2”) was the main contractor of the Site.  Construction works were being carried out andundertaken there.  The 1^st defendant (“D1”) was one of D2’s sub-contractors at the Site.  D1 was responsible for welding and dismantling ironware. 

3.  There is little dispute, and I so find, that:

(a)  the Site was a “construction site” within the meaning of the Construction Sites (Safety) Regulations, Cap 59I (“Cap 59I”);

(b)  gas welding and flame cutting work at the Site was “construction work” within the meaning of the Factories and Industrial Undertakings Ordinance, Cap 59 (“Cap 59”); and

(c)  the Site was a “workplace” within the meaning of the Occupational Safety and Health Ordinance, Cap 509 (“Cap 509”).

P, and his employment

4.  P was 63 at the time of the accident.  Albeit only educated up to primary school level, he was a very experienced welder.  Prior to the Accident, he had been engaging in welding and ironware installation and dissembling works for over 40 years.  During cross-examination, it was suggested to him, and he accepted, that he was a “師父”—a master welder.

5.  On the day of the accident, P was employed by D1 as a welding worker.  He was assigned and instructed to carry out, amongst others, gas welding and flame cutting work at the Site.

The Accident

6.  While so employed by D1 and while working at the Site, in the afternoon of 19 May 2011, P fell from the Ladder and was injured (ie the Accident).  The Ladder was an A-shaped ladder of about 3 meters tall.

7.  The above are not in dispute.  But exactly how the Accident took place was.  P was alone at the time of the Accident.  He is the only person who can give direct evidence on how the Accident took place.  

P’s pleaded case

8.  P’s Amended Statement of Claim (“ASoC”) was filed on 7 January 2015.  The material averments are as follows:

(a)  D1 as his employer and D2 as the principal contractor owed him a duty of care and/or common duty of care to provide and maintain safe pace of work, safe and proper plant and equipment, safe system and method of work, and adequate and proper training, instructions, assistance and supervision to enable him to carry out his work at height safely (§3);

(b)  D1 and D2 as contractors owed him various statutory duties under Cap 59I and Cap 509 (§4);

(c)  In respect of the Accident, it was pleaded at §5 that:

“ On or about 19^th May 2011 at about 14:00p.m., [P] was, in the course of his employment with [D1]. He was instructed by his superior to conduct dismantlement work including dismantling waste water pipes, iron door, water pump etc., in a fire pump room at the construction site with a co-worker. In order to dismantling a thick waste water pipe attached to the ceiling, [P] used an A-shaped aluminum ladder which was 7–8 feet high. From time to time, [P] had to come down from the ladder so as toshift the entire ladder and climbing up again in order to continue the dismantlement work at the ceiling. On one such occasion as [P] was climbing up to work, [P] fell off the ladder onto the floor and then lost consciousness (the ‘Accident’). As a result,[P] sustained serious personal injuries.”

(d)  At §6, it was pleaded that the Accident “was caused wholly and solely by the negligence and/or breach of common duty ofcare and/or breach of contract of employment and/or breach ofstatutory duty of [D1] and/or [D2], their servants and/or agents”;

(e)  Particulars of negligence were pleaded in §6(A).  Originally 12 sub-paragraphs were pleaded.  They were wide-ranging but general in nature (like failure to provide suitable plants and equipment, failure to give adequate safety training, failure to provide warnings and instructions, failure to inform risk, failureto provide assistance, failure to devise and operate a safe systemof work, failure to assess risk), leading to sub-paragraph (l), that:

“ (l) In the premises failed to provide [P] with a safe place of work and/or a safe system and/or method of work and/or safe equipment at work.”

Subsequently, and by way of amendments, four additional sub-paragraphs were added:

“ (m) Failing to provide any or any sufficient anchorage points for [P’s] safety belt;

(n) Failing to ensure that the ground of the Site was dry and/or causing or permitting the ground of the Site to be wet;

(o) Failing to ensure that the ground of the Site was clear from water pipes and/or pumps; and

(p) Failing to provide [P] with any or any adequate safe working platform for him to work at height.”

(f) Particulars of breach of Cap 509 were pleaded in §6(B).  Sections 6(1) and 6(2)(a) – (e) of the same were specifically pleaded;

(g) Particulars of breach of Cap 59I were pleaded in §6(C).  Regulations 38B, 38C and 38D of the same were specifically pleaded;

(h) The doctrine of res ipsa loquitur is also relied upon (§7).

The defence

9.  Ds’ Amended Defence (“ADef”) was filed on 1 November 2016.  The material averments are as follows:

(a)  P’s employment was admitted;

(b)  P is put to strict proof of those duties which P averred Ds owed him;

(c)  In respect of the Accident, and in response to §5 of the ASoC, Ds plead at §5 that:

“ Save it is admitted that on 19^th May 2011, at about 14:00 hours, [P] was in the course of his employment with [D1] instructed to conduct dismantlement work in a fire pump room at the construction site with a co-worker when [P] fell off the ladder and sustained injuries, no admission is made to paragraph 5. [P] is put to strict proof thereof, in particular, the circumstances in which he fell off the ladder onto the floor.”

(d)  Contributory negligence on P’s part is raised (§7);

(e)  P pleads further at §8 that at the material times:

“ (a) The floor of the Fire Pump Room was dry or otherwise free from any wet or other slippery substance.

(b) [P] was provided with an 8-ft tall ladder to facilitate his work.

(c) The said ladder was in good working condition, suitable for its purpose and safe.

(d) A co-worker, Chan Ka Wing, was assigned to hold and/or stabilise the ladder for [P] when he was climbing and/or standing on it carrying out work at height.

(e) It was unforeseeable that [P] would climb the ladder withoutwaiting for his co-worker, Chan Ka Wing, to return to holdand/or stabilise the ladder therefore resulting in the accident.”

The witnesses

10.  Three witnesses in total were called during the trial.  P testified. D1 also testified.  On behalf of the defence, Lau Chun Fai (“Lau”) was called.  He is a director of a loss adjuster called Integrity Adjusters Limited. He interviewed P on 13 February 2012 and prepared a record of interview (“Record of Interview”), which he produced as an exhibit during the trial.  I will deal with their evidence as appropriate below.

The appropriate approach when considering the credibility of witnesses

11.  Mr Lim, counsel for P, cited to me Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513.  I have considered that case, which is one of many cases which discuss the appropriate approach when considering the credibility of witnesses.  I remind myself of the importance of considering theinherent likelihood or unlikelihood of the witness’ evidence, the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence.  I need to consider the totalityof the evidence.  I warn myself against attaching undue weight on demeanour, though demeanour is obviously relevant when considering credibility.  

P’s evidence

12.  P testified.  P had given two witness statements for the purpose of these proceedings.  The first one was dated 28 December 2015 (“PWS#1”).  The second one was dated 28 November 2016 (“PWS#2”).  Both were adopted as his evidence-in-chief.  I have considered them in their original Chinese.  English translations have been prepared, which were included in the hearing bundles and were used during the trial.  The contents set out below are from those translations[1].   

13.  In PWS#1, P said this:

“ 11. In the morning of the same day, [D1] asked me and another worker, Chan Ka Wing, to disassemble equipment in a fire service pump room of the work site. The equipment to be removed included hollow pipe, iron gate and some water pumps and screws. Chan Ka Wing was responsible for providing assistance for me during the work and removing articles disassembled by me.

12. I did the disassembling work on the floor and on high position in the fire service pump room. The fire service pump room is over 3 meters high. Therefore, I needed a safety platform to reach the dissembling parts in high above. There were water pumps and water pipes on the ground of the service pump room, but not safety platform. [D1] instructed me to use an ‘A-type’ aluminum ladder. Therefore, I had no alternatives but to comply with his instructions to use an ‘A-type’ aluminum ladder to disassemble parts installed high.

13. Before climbing the aluminum ladder, I had already worn safety shoes, helmet, mask and safety goggles. I had prepared safety belt at that time. However, there was no facility for fastening the safety belt to in the fire service pump room, and thesafety belt can be fastened to nowhere. As a consequence, I had to step onto the aluminum ladder without wearing a safety belt.

14. About 1:00 p.m. after lunch, I was prepared to remove a 2-inch hollow pipe installed on the ceiling.To prevent the cut hollow pipe from hitting myself or my colleague or causing otherunnecessary damage, I decided to climb the aluminum ladder to tie and fix the hollow pipe first, and cut the hollow pipe with a pneumatic coal borer and then lower the pipe down for handling.

15. I remember that [D1] asked Chan Ka Wing to hold the aluminum ladder steady when I was on the ladder to prevent me from falling down from a shaking ladder. However, workers available for the work were insufficient at that time. Chan Ka Wing left the fire service pump room. I thought he was assignedto do other work temporarily. [D1] was nervous about the work progress. If any worker was found slow in work, the worker would be fired. Therefore, all workers including me had to finish the work quickly. Although Chan Ka Wing was not available to helping in the fire service pump room, I had to continue my work reluctantly.

16. However, I fell off from the ladder before cutting the hollow pipe and then I lost my consciousness complete …”

14.  When giving evidence in chief, P corrected §12 of PWS#1 and said that the height should be more than 3 meters, about 4 odd meters. 

15.  Though PWS#1 was the first witness statement P signed off for the purpose of this proceedings, it was not the first time he was asked to recount the Accident.  According to Lau, he interviewed P about the Accident on 13 February 2012.  He prepared a contemporaneous record of interview (ie the Record of Interview).  The Record of Interview bears P’s signatures.  It was in Chinese, which I have considered.  According to the translated version:

“ In the morning of 19 May 2011, [D1] assigned Chan Ka Wing and I to a fire service pump room at the [Site] to dismantle old equipment, for example pipes, metal doors, some pumps screws etc. I recall I have worked in the same pump room on dismantlement works before. Chan Ka Wing assisted me with my work, he had to remove the things that I have dismantled. In addition, [D1] instructed Chan Ka Wing to hold the ladder for me to work on dismantlement works at height, because at the material location there were pumps and pipes on the floor, so there was not enough space to erect a working platform. Also, because the ceiling was only about 3 meters high, it is appropriate to use an aluminum ladder.

In the morning of 19 May 2011, I was at the abovementioned pump room working on dismantlement works on the floor and at height. I climbed a tall A-shaped aluminum ladder. When I used the ladder in the morning, I felt it was very stable. At 2 p.m. I planned to climb on the same ladder to dismantle a 2 inch thick pipe mounted on the ceiling. I planned to go on the ladder and use a rope to tie on the said pipe, then use a gas weld to cut the pipe into 1 meter sections. The reason for tying the rope is to avoid cut sections of pipe falling down uncontrollably and hit me or co-workers or cause unnecessary damage, and to suspend and lower the sections for further handling. As I was climbing up the ladder, before I started tying the rope and before I stabilised myself on the ladder, I suddenly fell from the ladder. I am not sure of the reason for my fall, I was unconscious at the time. I regained consciousness after 2–3 days in the hospital. To this day I still do not know why the Accident happened, I am also not sure if the ladder fell during the Accident, I also do not know if I slipped and fell from the ladder, I am only sure that at the material time, Chan Ka Wing was moving materials outside and was not in the pump room, I considered that I only had to goup to tie ropes and will not use gas weld to cut pipes, so I thought Chan Ka Wing need not hold the ladder for the time being.

At the time of the accident, I was wearing safety shoes, safety helmet, had safety belt with me, face mask and safety goggles.  However, since there was no hook to fasten the safety belt, so I did not wear the safety belt.  Because we were dismantling pipes, there is unavoidably some water on the floor.  The ladder I used at the time did not have any problem or irregularity.  I have dismantled similar pipes in the past, and have relevant experience, I used the same method of dismantling.”

16.  In PWS#2, P said this:

“ 3. The fire service pump room ceiling is over 4m height. After the alleged accident, I visited the work site again and noticed that the site turned into the Nin Jiom Medicine Manufactory (Hong Kong) Limited. As shown in Exhibit I, the floor-to-floorheight is about 4m. As shown in Exhibit II, the two videos showthat the height between the top of the exterior wall of the building (which is the one which blue tile background in the video) and the ground floor is about 4.38m. My duties included demolition works. Besides working on ground floor, I also needed to work at height. Therefore, a working platform was necessary for me to reach the high position. At the material times, there were water pumps and water pipes on the floor but no such working platforms. Moreover, [D1] asked me to use an ‘A-type’ aluminum ladder to carry out my job duties. Although I was clear that such arrangement was not a safe one and it was not in compliance with the law, I could only rely on his directions and use an ‘A-type’ aluminum ladder for demolition works on higher positions.

4. Chan Ka Wing was responsible for providing assistance for me, such as by helping to remove the articles disassembled by me and to hold the aluminum ladder steady when I was on the ladder in order to prevent me from falling down from a shaking ladder. However, Chan Ka Wing was assigned work by [D1] from time to time. Thus, even though Chan Ka Wing was originally designated to provide assistance for me, his work depended on the temporary arrangement of [D1].

5. As there was no device for fastening the safety belt in the fire service pump room, I had to step on the aluminum ladder without safety belt, resulting in higher hazard when I carry out job duties at height.

6. However, the ‘A-type’ aluminum ladder was just sufficient enough for me to reach the high position. Meanwhile, it was very unstable and unsafe. It was difficult for me to work without a working platform and a safety belt in high position. Moreover, the water pipe, water pump, rubbish, water from the removed water pipes and water pumps on the floor made the ‘A-type’ aluminum ladder more unstable. I have to emphasize again that the floor was never dry because the water would flow from disassembled water pipe and water pump to the ground floor.

7. I also confirm that I am only about 1.6 meters tall. Thus, I had to stand on at least the fourth step or even on the highest level of the ladder when I removed the pipes, water pump and screw attached on the ceiling. As a result I had to be at least 2 meters above the floor when I carried out my work on the ‘A‑type’ aluminum ladder. Pursuant to the Guidance issued by the Labour Department, employers have to provide a working platform for the employees for the works at a height of over 2 meters or above. Apparently, even when Chan Ka Wing helped me by holding the aluminum ladder, the employer could not be exempted from his liability.

8. On the date of accident, at about 1 p.m. after lunch, ChanKa Wing had already left the fire service pump room. However, [D1] still asked me to continue working without the help of ChanKa Wing. I thought Chan Ka Wing was asked to move to another task temporarily. When Chan Ka Wing left, he did not tell me the time when he would come back.

9. I fell off from the ladder before doing cutting work ….”

17.  In respect of the Record of Interview, P said this at §10 of PWS#2, that:

“ With respect of the interview, I had taken with Integrity Adjusters Limited and such interview record made on 13 February 2012 mentioned by [P] [sic], the content is not completely true. I suffered severe headache and dizziness at that time when I had the interview. I had no full understanding of the questions being raised by the loss adjuster. I simply hoped to finish the interview as soon as possible and I tried my best endeavor to give my answers even I was feeling uncomfortable.I signed on the interview record because I believed in the professionality of the loss adjuster and truly believed that the loss adjuster had understood my instructions. The loss adjuster did not ask me to read the record again or ask me whether I was clear about the content. Later, I found that the loss adjustor misunderstood me in many areas.”

P however did not in PWS#2 spell out which part or parts of the Record of Interview were not true, or which “areas” Lau had misunderstood him.

18.  P was cross-examined by Mr Sakhrani. The following areas are of special importance:

(a)  How the Accident took place and from what height P fell:

(i)  P has not been able to tell the Court the circumstances in which he fell from the Ladder;

(ii)  P claimed in PWS#2 that the Ladder was unstable, that the floor was never dry, and that the presence of water pipes and pumps made the Ladder more unstable.  There is however no evidence which suggests that those were the reasons why he fell.  He could not tell the Court how and why the Accident occurred.  In PWS#1, he simply said “I fell off the ladder before cutting the hollow pipe…”(§16).  Similarly, in PWS#2, he only said “I fell off from the ladder before doing cutting work.” (§9)  In the Record of Interview, he was recorded to have said “To this day I still do not know why the Accident happened, I am also not sure if the ladder fell during the Accident, I also do not know if I slipped and fell from the ladder…”

(iii)  P could not even recall from which step of the Ladder (and hence from what height) he fell.  His relevant evidence during cross-examination was as follows:

“ Q. You have no recollection why you fell from the ladder?

A. Right.

Q. And indeed, you have no recollection from which step you fell as you were proceeding upwards, as you were climbing the ladder?

A.  I am not clear about it.”

(b)  Whether the Ladder was safe and secure:

(i)  P has not been consistent on the issue as to whether the Ladder was safe and secure;

(ii)  In the Record of Interview, P said that “When I used the ladder in the morning, I felt it was very stable”, and that “The ladder I used at the time did not have any problem or irregularity.”

(iii)  In PWS#1, P did not suggest that the Ladder was in any way unstable or unsafe 

(iv)  In PWS#2, P for the first time alleged, at §6 thereof, thatthe Ladder “was very unstable and unsafe”.  Whether theLadder was stable and safe is an important issue.  The fact that P only made in his second statement the allegation that it was not raises grave concern as to its veracity;

(v)  Then, during cross-examination, he retracted theallegation:     

“ Q. I put it to you that the ladder was secure and stable.

A. Well, at that time, the situation was, well, I can say I agree. That is if I myself tied it to something to secure it, then it would be safer.

Q. I put it to you that if this accident occurred whilst you were climbing up the ladder, it was one of those unfortunate accidents which anybody can experience.

A. Right. Correct.

Q. This accident occurred whilst you were ascending, not because of anyone’s negligence, but because it was a mere accident.

A.  I accept that.”

(c)  Whether D1 had in the afternoon told P to work on his own without Chan Ka Wing’s assistance (the “Alleged Instruction”):

(i)  P accepted that in the morning, D1 specifically assigned Chan Ka Wing to assist him.  One of Chan Ka Wing’s duties was to hold the Ladder at its base;

(ii)  Whether D1 had in the afternoon before the Accident given P the Alleged Instruction is an important issue;

(iii)  The Alleged Instruction was not pleaded in the ASoC;

(iv)  There was no such allegation in the Record of Interview;

(v)  I have set out above the relevant paragraphs in PWS#1 (see in particular §15 thereof).  There was no allegation there that D1 had specifically told him to work on his own without Chan Ka Wing’s help;

(vi)  Then, in PWS#2, he said for the first time that at about 1 pm that day “[D1] still asked me to continue working without the help of Chan Ka Wing.  I thought Chan Ka Wing was asked to move to another task temporarily[2].  When Chan Ka Wing left, he did not tell me the time when he would come back.”

(vii)  During cross-examination, P gave yet another version.  From thinking (“估計” being the term in Chinese P used in PWS#2) that Chan Ka Wing had been asked to move to another task temporarily, P’s evidence in court became “[D1] did tell Chan Ka Wing to do other work first.”  The relevant answer P gave towards the end of the cross-examination (when Ds’ case was put to him) was:

“ Q. [D1] did not tell Chan Ka Wing to go and do other work after lunch.

A.  I disagree.  He did tell Chan Ka Wing to do other work first, and he did tell me to work on my own first, and after Chan Ka Wing finished the other work, Chan Ka Wing would come back to assist me.”

(viii)  In addition to the above inconsistencies, P’s evidence that D1 had given him the Alleged Instruction and that he complied with it is in my view inherently unlikely given the following evidence:

(1)  the effect of P’s evidence was that he reluctantly worked on his own because D1 was nervous about work progress, and that had he (P) refused to following the Alleged Instruction, he could be fired;

(2)  P however agreed that the works were on schedule;

(3)  P was a master welder of more than 40 years of experience.  He agreed during cross-examination that if he did not want to work on elevated ladders,he could easily have found work with another contractor;

(4)  He agreed further during cross-examination that even on the morning of the Accident, there were occasions when he continued to work on the Ladder despite Chan Ka Wing’s absence.

(d)  P’s mental state when he was interviewed by Lau:

(i)  As is obvious from their respective contents (as set out above), the contents of the Record of Interview are quite inconsistent with those of PWS#1 and PWS#2;

(ii)  P in PWS#1 did not deal with the Record of Interview;

(iii)  He in PWS#2 claimed that “the content [of the Record of Interview] is not completely true.”  He said that he was suffering from severe headache and dizziness.  In chief, P said that he was then not in a fully alert mode as he had taken some pain killer and other things and was not so clear.  He said he was prepared to sign it as Lau had said to him that “You sign this and I then can report to my company”;

(iv)  P ought to understand the importance of the interview.  I find it difficult to accept that P would have agreed to continue if he were indeed in the state he described;

(v)  I note that P failed to set out in PWS#2 as to which parts of the Record of Interview which he claimed were untrue;

(vi)  I note further that when giving evidence, despite being specifically asked to do so, P failed to spell out which parts of the Record of Interview which he claimed were untrue.

D1’s evidence

19.  D1 testified.  He had given two witness statements (“DWS#1”and “DWS#2”).  He adopted both as his evidence-in-chief.  The following matters are worthy of note, that:

(a)  He said at §3 of DWS#1 that:

“ I recall that in the morning of 19 May 2011, which is the day of the Accident, I assigned [P] and his co-worker, Chan Ka Wing to work at a fire service pump room at the Site to cut off the old fittings, includingpipes, metal doors and water pumps, etc. At that time, I assigned[P] to dismantlement works, and Chan Ka Wing was assigned to remove the pieces dismantled by [P]. Since the dismantlement works involved dismantling several pieces of fire services pipes mounted at the ceiling inside the fire service pump room, I have specifically instructed [P] that he must only climb to a higher position on the ladder for dismantlement works when Chan Ka Wing was holding the ladder in place for him. After I delivered my instructions, I went to work at another location at the Site.”

(b)  He denied having given P the Alleged Instruction;

(c)  A1 §5 of DWS#1, D1 claimed that P had after the Accident told him that he climbed to the upper part of the Ladder to work without waiting for Chan Ka Wing’s return, that he wished to finish his works as soon as possible, and that he did not know why he suddenly fell.  During cross-examinationand re-examination, D1 said the conversation took place whilst P was in the hospital, but that he could no longer remember what P had said;

(d)  At §7 of DWS#1, having produced a photograph of the Ladder, he said that:

“ After the Accident, I have examined the ladder and did not discover any problems with it. In [the Record of Interview, P] confirmed that the ladder he used at the material time did not have any problem or irregularity.”

(e)  At §8 of DWS#1, he said:

“ Since the floor of the fire service pump room had pumps and pipes, there was no safe place to set up a working platform for dismantling at height. Moreover, the ceiling was only about 3 metres high, it was more appropriate to use an aluminum ladder to work.”

(f)  During cross-examination, the question of risk assessment on the use of the Ladder was raised, as follows:

“ Q. Had there been any risk assessment conducted as to how to gain height to remove the pipes from the ceiling in the pump room?

A. Yes.

Q. Who conducted it?

A. The safety officer.

Q. The safety officer of the principal contractor?

A. Yes.

Q. So, was it the safety officer who recommended the use of the ladder to gain height at the pump room?

A.  The assessment result from the officer was this, then a ladder had to be held by someone before work could be done.”

(g)  In DWS#2, D1 said at §3 that:

“ … unfortunately, since Chan Ka Wing resigned soon after the Accident, I have not been able to contact him. Or else, he would be willing to come forth and tell the truth.”

He was cross-examined on the steps he had taken to locate Chan Ka Wing, as follows:

“ Q. What steps did you take to contact him?

A. I asked someone else to try the contact.

Q. Whom did you ask to try to contact him?

A. Those people who introduced him to work here.

Q. Did you have his home address?

A. I should say the principal contractor would have this.

Q. They would need it for his tax return and MPF?

A. Yes, and also when this person was recruited, and also for letting him receive safety classes.

Q. But you took no steps to ascertain his address to contact Mr Chan?

A. He was a temporary worker. He had worked there for a few days.

Q. Be that as it may, you took no steps to contract him directly?

A.  He did not come to work.  I had no other way to handle it.”

Lau’s evidence

20.  Lau testified.  He adopted his witness statement as his evidence in chief.  He produced the Record of Interview.  In his witness statement, he said:

“ 5. I recall that, throughout the entire meeting, [P] never mentioned that he was at that time suffering from headache, dizziness or feeling unwell due to other reasons. He did not request to stop or re-schedule the meeting due to felling unwell or other reasons either. [P] was able to answer all my questions fluently and describe in detail how the accident happened. Neither did he mention nor complain that he did not understand my questions.

6. At the meeting, I passed the statement report to [P], askedhim to read the same and point out inaccurate contents right away so that I could make amendments.  I also reminded [P] to sign the statement report only after he had read and confirmed the accuracy of its contents.  After reading the statement report, [P] signed next to all the amendments and at the bottom of each page, during which [P] did not point out to me that the statement report contained any inaccurate content.”

Assessment of the credibility of the witnesses

21.  I do not find P to be a credible witness.  I do not find him to be truthful or reliable.  As I have set out in paragraph 18 above, his evidence on those material aspects are inherently unlikely, internally inconsistent and contradictory in the ways as I have described.

22.  I find D1 to be a credible witness.  His was not contradicted in any material respect.  His inability to recall what he claimed P had told him about the accident was unsatisfactory.  That however in my view does not affect his overall credibility.

23.  I find Lau to be a credible witness.  His evidence was not contradicted in any material respect.  I do not find him to be evasive at all, as Mr Lim sought to argue.  If P were really feeling as bad as he claimed hewas at the time of the interview, he would have asked for its deferral or have simply refused to attend.  There was nothing which could have prevented him from doing either of those, and doing either of those is inherently more likely than deciding to attend when he was not in a fully alert mode and hoping “to finish the interview as soon as possible”, as P claimed at §10 of PWS#2 and when giving evidence in court.  He signed the Record of Interview.  Further, despite having claimed that certain parts of the Record of Interview were not accurate, he failed to specifically identify those parts, whether in his statements or when giving evidence in court.  I do not find P’s evidence in this regard credible.  I find Lau’s evidence more inherently likely.  I accept Lau’s evidence. 

Adverse inference against Ds for not calling Chan Ka Wing?

24.  Mr Lim argued that I should draw an adverse inference against Ds for having failed to called Chan Ka Wing.  Mr Lim relied on Wisniewski v Central Manchester Health Authority [1998] PIQR P324, wherein Brooke LJ observed at P339 – P340 that:

“ In R. v. IRC ex parte T.C. Coombs & Co. [1991] 2 A.C. 283 Lord Lowry explained at p. 300 the benefit which a court may be willing to confer on a silent defendant who gives some sort of explanation for his failure to give evidence, even if it is not a very good one. He said:

‘ In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be,within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.’

From this line of authority I derive the following principles in the context of the present case:

(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn.  If,on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimentaleffect of his/her absence or silence may be reduced or nullified.”

25.  Mr Sakhrani submitted that no adverse inference against Ds should be drawn.  He submitted that there was no silence on the part of Ds.  D1 gave evidence and denied having given the Alleged Instruction.  He submitted further that D1 had given a credible explanation of Chan Ka Wing’s absence, that soon after the Accident, he had not been able to contact Chan Ka Wing.  Relying on Heung Wing Yan v Hangway HousingManagement Limited & Ors HCPI 347/2012 (unreported, 14 October 2016), Mr Sakhrani further submitted that in any event, this is not a case in which the adverse inference arises.

26.  In Heung Wing Yan, Deputy Judge Marlene Ng (as she then was) was invited to draw an adverse given the failure on the part of a party to call a witness.  The learned Deputy Judge observed at §29 that:

“ … whether adverse inference is to be drawn depends on the quality of the primary facts on which the inference is based, and the primary facts must allow of the inference to be drawn in the sense that the inference logically flows from those facts, so the judge has to be persuaded it will be appropriate to draw the inference.”

27.  One of the authorities (at footnote 10) which the learned Deputy Judge cited in support of that observation she made at §29 was Tjang Siu Thu v Profield Construction Engineering Limited & Anor CACV 156/2013 (unreported, 27 May 2015).  In that case, McWalters JA observed at §33 that:

“ 33. The following propositions can be derived from the case law:

(i) the Wisniewski principles do not constitute a presumption;consequently, the mere failure of a party to call a witness does not automatically confer an evidential benefit on the opposing party;

(ii) the Wisniewski principles concern the drawing of inferences and whether any inference is drawn will depend upon the quality of the primary facts on which the inference is based; this is necessarily a fact sensitive matter and will vary from case to case;

(iii) the primary facts must allow of the inference to be drawn in the sense that the inference logically flows from those facts;

(iv) in the circumstances of the case the judge must be persuaded that it is appropriate to draw the inference; and

(v) one circumstance where it will not be appropriate to drawthe inference is where there is an explanation for the party’s failure to call the witness.”

28.  In the present case, I accept Mr Sakhrani’s submission that there was no silent on the part of Ds. D1 had given direct evidence that he had not given the Alleged Instruction.  An explanation had been given as to why Chan Ka Wing was not called.  It is not an incredible explanation.  It is not appropriate to draw any adverse inference against Ds in the circumstances.  In any event, the fact that Chan Ka Wing was not called is only one of the factors to be considered.  I have considered the totality of the evidence.  I highlight my analysis set out in paragraph 18(c) above.  Given the unsatisfactory evidence adduced by P, and even with the absence of Chan Ka Wing and Ds’ failure to call him as a witness factored in, I am not prepared to draw any adverse inference against Ds that D1 had told Chan Ka Wing to work on other things or had given P the Alleged Instruction.

Factual findings

29.  I find that P is not a credible, truthful or reliable witness.

30.  I find D1 and Lau to be truthful and reliable.

31.  I find that P had been working atop the Ladder even in the morning of the Accident when Chan Ka Wing was not with him.  I accept D1’s evidence, and I so find, that he had not given the Alleged Instruction.

32.  There is no direct evidence before me as to how the Accident took place.  There is no direct evidence as to from which step P fell.  Thereis hence no direct evidence as to from what height he fell.  There is no direct evidence on the reason for his fall—eg whether he slipped, or the Ladder slipped, or that the Ladder was defective, or for other reason.  There is hence no direct evidence as to what caused his fall.

33.  The way in which Mr Lim described the Accident was illustrative of the difficulties he faced.  He stated at §1 of his Written Closing on behalf of P (the emphasis being mine) that “In the afternoon of that day one of the occasions when [P] was going up/coming down/working on the [Ladder] he fell to the floor below and sustained injuries.”  The reality therefore is that the Court does not even know whether, when the Accident took place, P was going up or coming down from the Ladder.  A fortiori the Court does not know from what height he fell. 

34.  Mr Lim invited me to infer from P’s injuries that he must have fallen from quite some height. I refuse to do that.  In my view, the Court needs the assistance of an expert to do that.  As a matter of common sense, the Court notes that serious injuries can result even if a person simply trips and falls on level ground.

35.  On that same topic, Mr Lim invited me to infer that P must have fallen from the higher part of the Ladder where the centre of gravity was further away from the base.  I refuse to so infer.  In my view, that would not have been an inference, but a sheer speculation.   

36.  I find that P was interviewed by Lau on the date stated on the Record of Interview.  I find that P willingly and did to the best he could provide information to Lau during the interview, which Lau accurately recorded in the Record of Interview.

Failure to provide a platform grounding liability?

37.  Given the state of the evidence, Mr Lim sought to focus P’s claim upon the provision by Ds and the use by P of the Ladder, and the non- provision of a platform.  The relevant paragraphs of his Written Closing went as follows:

“ 2. There is no dispute that no working platform was supplied, only anA shaped aluminum ladder was supplied for [P], photo at [C 182].

…

17.  D1 as employer has to provide a safe system of work and safe equipment.  The ceiling was some 4.36 metres and the ladder was 3 metres.  The ladder is NOT a working platform but given the height it may not be safe even if someone was holding it at the bottom, but if no one was holding it then it would be unsafe.  Given the height of the ladder and the small base as a person climbs further up the centre of gravity goes further from the base.Even on the defence case after conducting the risk assessment the safety officer recommended that someone hold the ladder at the bottom.  Submit that to require [P] to climb the ladder with a co-worker holding the ladder D1 was in breach of his duty as employer.

18.  [P] cannot recall how he fell off the ladder or whether had toppled over.  However, given the height and if no one was holding it steady at the base it is more likely than not that he fell from the higher part of the ladder where the centre of gravity was further away from the base.  Therefore it is submitted that the failure to station a co-worker at the base was on balance causative of the fall from the ladder.

19.  Alternatively, to fulfil the duty to provide a safe place of work and safe equipment, as this was not an isolated incident [P] had to gain height to do the work, [D1] ought to have provided a working platform in which case it would not be necessary to station a person at the bottom of the ladder.  In any event a ladder that requires someone to hold the bottom is unsafe as it is reasonable foreseeable that the person tasked to hold the ladder might not be there to hold the ladder (cf Lai Chi Pon v. Toto Steel & Ironworks Ltd. and ors.HCPI no 1149 of 1995 judgment of Cheung J. of 12 March 1997).”

38.  That was on first glance an attractive way of framing P’s claim.  But having considered the evidence in detail, and for the following reasons, I do not accept that a case as framed has been made out.

39.  Mr Sakhrani has drawn my attention to Regulation 38C of Cap 59I, which stipulates that:

“ Where work cannot be safely done on or from the ground or from part of a permanent structure, the contractor responsible for the construction site concerned and any contractor who has direct control over the work shall provide, and ensure the use of,a scaffold, ladder or other means of support, all of which shall be safe for the purpose, having regard to the work to be done.” (emphasis added)

40.  Mr Sakhrani correctly pointed out that the use of a ladder is included in that list, and that a ladder can indeed be used so long as its use is safe for the purpose having regard to the work to be done.

41.  When deciding whether the Ladder could safely be used, the nature of works which P had to undertake, and the nature of the Ladder are the two main areas that need to be considered.  But the evidence on both areas are unsatisfactory:

(a)  The exact nature of P’s work and the height he had to reach were unclear:

(i)  It is an over-simplification for Mr Lim to suggest (at §17 of his Written Closing) that “The ceiling was some 4.36 metres”;

(ii)  P had indeed said that the ceiling inside the pump room was 4.36 m.  But the photograph produced by D1 at [C 182] shows that the height of the ceiling was not uniform.  Was 4.36 m the maximum height?  Or was it the average?  Or lowest?  That is not clear from the evidence;

(iii)  P described in a general way that he was required to dismantle pipes on the ceiling.  But those pipes were suspended from the ceiling.  The height of the ceiling cannot be equated with the height which P or his welding machine had to reach.  As Mr Sakhrani has submitted, P had given no evidence in that latter regard;

(iv)  P in PWS#2 said that he was “about 1.6 meters tall”. That has not taken into account the reach of his arms, and he has not given any evidence in that regard;

(b)  The evidence before me on the Ladder has been equally scanty:

(i)  The Ladder has not been examined by any expert;

(ii)  Except that the Ladder was made of aluminum, I have no evidence on matters like its design, construction, mechanism, stability, strength, rigidity, maintenance, etc;  

(iii)  There is no evidence even on its exact height or the heights of each of its steps or rungs.  It has been described as about 3 m tall.  But it is not clear whether that was the height before it had been open, and if so, what its height was after its base had been fully spread and the spreaders unfolded.

42.  The onus is on P to establish his case as framed.  In my view, he failed given the unsatisfactory state of the evidence.

43.  Worse still from P’s perspective, there is indeed evidence whichsuggests that it was not inappropriate to use the Ladder inside the pump room concerned:

(a)  D1 stated in DWS#1 (at §8) that as there was no safe place to set up a working platform, it was more appropriate to work with an aluminum ladder;

(b)  D1 also stated during cross-examination that the system he instructed P to follow was recommended by the safety officer employed by D2 after risk assessment;

(c)  P told Lau that as there were pumps and pipes on the floor, there was not enough space to erect a working platform, and that it was appropriate to use an aluminum ladder;

(d)  P further told Lau that the Ladder did not have any problem or irregularity;

(e)  Even P himself upon cross-examination accepted that at the timeof the Accident, the Ladder was secure and stable, though if he had tied it to something to secure it, it would have been safer;

(f)  P has adduced no expert evidence which suggests that the use of the Ladder inside the pump room concerned was inappropriate or otherwise unsafe, or that a platform should have been used instead;

44.  The provision of a platform might constitute a safe system.  I say “might” as I cannot so conclude, given (1) the absence of any expert evidence to that effect and (2) D1’s evidence that there was no safe place to set up a working platform inside the pump room.  But even on the assumption that it was, it does not mean, in the absence of any evidence to that effect, thatthe use of the Ladder is necessarily not.  The two are not mutually exclusive. 

45.  In addition to the above, P has also failed to prove causation.  In this regard, Mr Sakhrani submitted at §§13 and 14 of his Written Closing, which I accept, that:

“ 13. [P] said in xx that he did not know from which step he fell and the reason for his fall. One cannot assume that it must have been a higher step; the injury may simply have occurred because he fell backwards awkwardly from a lower step and landed on his head. Firstly, there is no evidence that the step he fell from was more than 2 metres above the ground. Secondly,one cannot assume he fell because the A-shape aluminum ladder was unstable and unsafe, in fact the concession [he gave during cross-examination and in the Record of Interview] is to the contrary. Thirdly, he may have lost his footing due to his insufficient attention or because he lost his footing as he made his way up. We simply do not know—the burden is on him to show negligence / breach of statutory duty caused the injury.

  14.  In the context of employer’s liability, it is not sufficient that the injury is caused, or connected with, the work of the employee; rather, it must be caused by the relevant breach of duty: Bonnington Castings Ltd.v. Wardlaw [1956] AC 613, at 620, 624, which was applied locally in Chan Yik Kwan v. Yuen Chak Man and anr., unrep., HCPI 781/1998, a decision in favour of the Defendant that was upheld on appeal.”

46.  I add that the proposition put forward by Mr Sakhrani at §14 of his Written Closing is amply supported by Bonnington Castings, where Lord Reid observed that:

“ It would seem obvious in principle that a pursuer or plaintiff must prove not only negligence or breach of duty but also that such fault caused or materially contributed to his injury ….”

(at p 620)

and Lord Tucker observed that:

“ … No distinction can be drawn between actions for common lawnegligence and actions for breach of statutory duty in this respect. In both the plaintiff or pursuer must prove (a) breach of duty and (b) that such breach caused the injury complained of.”

(at p.624)

47.  This leaves Mr Lim’s alternative case, that “it is reasonable foreseeable that the person tasked to hold the ladder might not be there to hold the ladder”.

48.  I do not accept that the evidence supports any requisite reasonable foresight on Ds’ part.  The system was recommended by a safety officer after risk assessment.  The relevant instructions that Chan Ka Wing should hold the Ladder were specifically given by D1 to P.  P was an experienced master welder.  He had the authority to tell Chan Ka Wing what to do.  P had used ladders like the Ladder before.  There is no evidence suggesting that Ds knew that the system which P was required to follow had been flouted before.

49.  In this regard, I also accept Mr Sakhrani’s submission, relying on Wong Wai Ming v Hospital Authority [2001] 3 HKLRD 209, that an employer is only required to take reasonable care for the safety of his workmen and is not obliged by law to remove every risk that may confront its employees.  In Wong Wai Ming, Keith JA observed, at §§8 – 9, that:

“ 8. An employer is under a duty to its workforce to take reasonable care for their safety. Where one employment happens to be more dangerous than another, a greater degree of care must be taken, but where the employer cannot eliminate the risk of danger, it is required to take reasonable precautions to reduce the risk as far as possible: see Charlesworth & Percy on Negligence (9th ed.) para.10-83.However, an employer is not required to take reasonable precautions to remove every riskwhich might confront its workforce. In a classic statement of the relevant principles, Lord Reid said in The Wagon Mound (No 2) [1967] AC 617 at pp.642E–643A:

… it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of…a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, eg, that it would involve considerable expense to eliminate the risk. He would weighthe risk against the difficulty of eliminating it….[T]he general principle [is] that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man….[I]t is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man,careful of the safety of his neighbour, would think it right to neglect it.

9. These principles have been applied to the employer’s duty to protect its workforce from attacks while they carry out their duties. … In each of these cases, the obligation on the employer to take such precautions as were reasonable to reduce the risk ofrobbery of persons who handle cash was not doubted, though ineach case it was held that, having regard to all the circumstances,reasonable precautions had in fact been taken to reduce the risk.”

50.  Further, for the same reasons which I have set out in paragraph 45 above, this alternative way to frame P’s case equally cannot overcome the question of causation.

51.  For the above reasons, I find that this alternative way of framing P’s case also fails.

Breaches under Regulations 38B, 38C and 38D of Cap 59I?

52.  For the same reasons which I have set out in paragraph 45 above, P’s claim based on alleged breach of Cap 59I fails on the issue of causation.

53.  Further, I agree with Mr Sakhrani’s submissions that they also fail for the following specific reasons:

(a)  in respect of Regulation 38B, there is no evidence that P fell from 2 meters or above;

(b)  in respect of Regulations 38C and 38D, I repeat my observations raised in paragraphs 38 – 40 above.

54.  In my view, P’s case based upon Cap 59I also fails.

Res ipsa loquitur?

55.  I do not accept that the doctrine of res ipsa loquitur has application in the present case.  The Accident could have happened without negligence on any party’s part.  Causation will also have to be proved.  Mr Lim did not push this when closing his case.

Contributory negligence

56.  Mr Sakhrani invited me, in the eventuality of me finding that liability is established, to find that the percentage of contributory on P’s was 80% if not 100%.

57.  In my view, there is strength in the submission, should I find that liability were established, that P had largely if not wholly contributed towards the occurrence of the Accident.  However, given my findings above,the question of contributory negligence is not engaged.  Without knowing how the Accident occurred, I have little basis to consider whether P had contributed towards its occurrence, and a fortiori the percentage.  I make no formal finding on the issue.

Quantum

58.  Quantum has been agreed.  But in the light of my findings above,I say no more about the issue.

Disposition

59.  For the reasons set out above, I dismiss P’s claim.

Costs

60.  There will be an order nisi that costs of the trial be to D1 and D2, to be taxed if not agreed.  P’s own costs are to be taxed under the Legal Aid Regulations.