WISHING LONG HONG v. WONG KIT CHUN

FACV No. 7 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2001 (CIVIL)

(ON APPEAL FROM CACV NO. 168 OF 2000)

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J U D G M E N T

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Chief Justice Li :

1. I agree with the judgment of Sir Thomas Eichelbaum NPJ.

Mr Justice Bokhary PJ :

2. I agree with the judgment of Sir Thomas Eichelbaum NPJ.

Mr Justice Chan PJ :

3. I agree with the judgment of Sir Thomas Eichelbaum NPJ.

Mr Justice Ribeiro PJ :

4. I agree with the judgment of Sir Thomas Eichelbaum NPJ.

Sir Thomas Eichelbaum NPJ :

5. Cheung Chung Wai (the deceased) died as a result of injuries sustained in an accident. In the Court of First Instance (Deputy Judge S. Kwan), the action brought by his administratrix for damages against the appellant firm, the deceased's employer, was dismissed, but on appeal the Court of Appeal (Rogers VP, Woo JA and Burrell J) held the appellant liable and awarded damages of HK$2,402,000.00, reduced by 20% on account of contributory negligence. The appellant appeals to this Court against the finding of liability. In the alternative, the appellant submits that the finding of contributory negligence ought to be varied by increasing the deceased's share of the responsibility.

Factual background

6. The deceased was the personal assistant and secretary of Mr Zai, the owner of the appellant firm. In that capacity, he accompanied Mr Zai on a trip to the Mainland. It was a multi-purpose trip, partly for business and partly for pleasure, but it is not disputed that the deceased was in the course of his employment when he suffered his most unfortunate accident. The journey concluded with a visit to Huangshan, where Mr Zai wanted to inspect the area having regard to possible future investment there.

7. On 24 October 1993 Mr Zai's party stayed at the North Sea Hotel. Early next morning they set out intending to see the sunrise from the White Goose Ridge of the Yellow Mountain. There were six persons in the party, Mr Zai and his wife, Mr Pang a photographer engaged by Mr Zai, Mr and Mrs Ho, friends of Mr Zai, and the deceased. Mr Zai was aged 80 and Mrs Zai and Mr Pang were in their late 60s, while Mr and Mrs Ho and the deceased were in their mid-forties. No member of the party had been to the Mountain before.

8. The path to the Ridge consisted of flights of steps with sections, described as platforms, between. The steps and platforms were constructed from irregularly shaped stones set in cement. The surface of the path was not entirely level, and was intersected by drainage ditches. No one witnessed the accident but it is a reasonable inference that the deceased's fall was caused by his accidentally stepping into one of the ditches. The particular ditch thought to be the cause of the deceased's fall measured about 4 inches deep and 4 inches wide. The deceased sustained a severe spinal injury leading to his death some days later, while in the course of hospital treatment in Hong Kong.

9. While the party was having a meal the evening before the proposed walk, the subject of torches arose. They were going to set out before sunrise, and the path was unlit. As a result of the discussion, three torches were purchased. There was no direct evidence who purchased the torches, or where, but the Judge at first instance concluded it was the deceased who bought them, a finding upheld by the Court of Appeal. Why only three torches were obtained instead of a greater number is speculative. Mr Zai, who was unable to give evidence owing to ill health, was paying the expenses for the entire party, and the Judge considered it unlikely that he placed a limit on the purchase of any particular number of torches, an inexpensive item. The number may have been the deceased's decision but equally, the shop may not have had any more available. In the event Mr Zai took one torch for his own use, his wife had another, and Mr Pang took the third, which he needed to assist him with his photographic equipment. There was evidence that Mrs Zai's torch was defective in that it did not give out as strong a light as should have been the case.

The Judge's findings

10. At the trial, the plaintiff gave evidence of the account of the accident and incidental events related to her by her husband, but the Judge largely rejected her evidence. Mr Pang was a witness for the plaintiff, while Mrs Zai and Mr Ho gave evidence for the defendant. An assessor who had inspected the scene and taken photographs and videotapes was also called. The Judge accepted Mrs Zai's evidence of the critical events. On her account, Mrs Zai was walking on her own and, upon hearing a sound turned around and discovered that the deceased had fallen to the ground. In other words the Judge found that the deceased was bringing up the rear and walking on his own, without the benefit of light from any of the torches.

11. The Judge held that it was not inherently dangerous for the party to walk the path in the dark with only three torches between them. She declined to hold that a reasonable employer would not have proceeded without ensuring that each participant had a torch. The path had a whitish surface which the Judge considered provided a contrast and made the path visible. In assessing whether the employer had fulfilled the obligation of reasonable care for the safety of an employee, the Judge took into account the deceased's age, that he was in good health and that he had trekked up high mountains in the course of his work previously. She said :

The Judge continued :

12. Thus the Judge concluded there was no breach of duty on the part of the employer. Further, she held that if the appellant had been in breach of duty in not providing the deceased with a torch, any such failure was not an effective cause of the accident. The Judge reasoned that if the deceased stepped into the ditch while trying to save Mrs Zai from falling (a version of events which however the Judge rejected) he probably would have fallen whether or not he had a torch.

In the Court of Appeal

13. In dealing with the issue of liability, the Court of Appeal agreed with the Judge that the path was not "inherently" dangerous. We take the thrust of this finding to be that the activity was one an employer could reasonably ask his employee to undertake provided appropriate precautions were observed. The Court of Appeal considered however that at the time the path was dangerous, in the sense that any path in a mountainous area was likely to be in the dark. Mr Zai, as employer, knew there were only three torches available between the six persons in the party, but did not slow down or stop to make sure that the benefit of the torches was available to those at the rear. Regardless of the deceased's own view of the number of torches required, Mr Zai owed the deceased a duty to provide him with sufficient lighting, or at least to give him a choice about whether to continue with the walk. It was not satisfactory to have to share the lighting provided by a torch held by another person, thus being without control over where the beam would be directed. In the Court's view, the risk to which the deceased was subjected, would have been foreseen by a reasonably prudent employer. In the circumstances, where at best the deceased would have the benefit of the defective torch held by Mrs Zai, Mr Zai ought to have told the deceased either to acquire more torches, or wait until daybreak. So the Court considered that the appellant was in breach of the duty of care of a reasonable employer towards an employee.

14. The Court of Appeal also disagreed with the Judge's opinion regarding causation. As the judgment pointed out, the Judge's actual finding regarding the way the accident happened was that the deceased was walking behind Mrs Zai when he tripped and fell. Thus the version advanced by the plaintiff, that the deceased was helping Mrs Zai at the time, was simply irrelevant. Accordingly, the Court held the appellant liable in damages, subject to a further finding that the deceased's own fault contributed to the extent of 20%.

Legal principles

15. At first instance the case turned entirely on issues of fact. In such a case, the principles applicable on appeal are not in doubt:

16. Here, the outcome did not turn on conflicts of testimony. There were conflicts, but the Judge resolved them in favour of the appellant. On the basis of her view of the facts, the Judge concluded the plaintiff had failed to establish a breach of duty on the appellant's part, or that any breach was causative of the deceased's injury and death. In those circumstances, on appeal the statement of principle by Lord Wright in Powell v Streatham [1935] AC 243, 267 is applicable. Referring to the problem facing a Court of Appeal when it has to deal with a question of fact, but finds itself in "a permanent position of disadvantage as against the trial judge", Lord Wright said:

17. To similar effect are the well known remarks of Viscount Simonds in Benmax v Austin Motor Co. Ltd [1955] AC 370, 373:

18. A little later in his speech Viscount Simonds said:

19. Finally Viscount Simonds stated that in a case like that under appeal, where the sole question was the proper inferences to be drawn from the primary facts, an appellate court, while attaching importance to the judgment of the trial judge, should form an independent opinion.

20. However, there is an onus on the appellant to show that the trial Judge was wrong: Rangatira Ltd v Commissioner of Inland Revenue [1997] 1 NZLR 129, 138-9 (PC).

21. These citations describe the approach the Court of Appeal appropriately took in the instant case.

The appeal to this Court

22. For the appellant, the main thrust of the argument of Ms Eu SC was that there was no breach of the duty of care. A reasonable employer in Mr Zai's position would not have foreseen the risk of harm to the deceased. All the indications, counsel said, were to the contrary, in that there was no evidence the hotel had issued any warning about the need for special care, there were other persons using the path without torches, and no one in Mr Zai's party protested, or voiced any doubts about proceeding with the lighting that was available. The last point, in my opinion, was not one on which much reliance could be placed, having regard to the circumstances of the other members of the party. Mr Zai had a torch, and was anxious to reach the top and see the sunrise. Mrs Zai also had one of the torches, although in the Court of Appeal's view, not a fully effective one. It was understandable however that she would not wish to hinder her husband from seeing the sunrise. Likewise Mr & Mrs Ho, as Mr Zai's guests, would not be anxious to protest about the arrangements. Mr Pang had a torch for his sole use, and in any event, having been engaged by Mr Zai to take photographs, would feel inhibited about aborting the trip. In the deceased's own case, while in theory he might have declined to go on, given his position as Mr Zai's assistant it would not have been easy for him to say that and one can understand a reluctance to raise the subject, especially given the age disparity between the Zais and himself.

23. Ms Eu emphasised she was not saying that Mr Zai's duty of care was delegable. However, she argued that given the uncomplicated nature of the activity to be undertaken, when the deceased (for whatever reason) supplied 3 torches only, it was not incumbent on Mr Zai to take any further steps for his safety. The members of the party were all sensible adults and Mr Zai was entitled to leave it to their judgment whether the lighting was sufficient to allow them to continue the walk. Counsel emphasised that it was not sufficient to hold it would have been better to have had more torches, what was required was a finding, based on evidence, that it amounted to lack of reasonable care not to provide them.

24. For the respondent, on the other hand, Sir John Swaine SC submitted that once Mr Zai reached the path and became aware of its potentially dangerous nature, as a reasonable employer he should have realised the sharing of torches was insufficient, and that reasonable care required he should have aborted the walk, or postponed it until daylight.

Evaluation

25. On the question of breach of duty, as noted there was no contest that in accompanying his employer on the walk, the deceased was acting in the course of his employment. So it risks obscuring the issue to say, as the trial Judge did, that the walk was more in the nature of sight-seeing than work, and that the deceased was not obliged to go. He was in the course of his work, and the employer owed him the normal duty of an employer, that is, to take such care as was reasonable in the circumstances, not to subject the employee to unnecessary risk; or, as it is often put in a concise way, to take reasonable care for the employee's safety. The nature of the activity was relevant to the degree of precaution required.

26. In my opinion the duty was not discharged, in the circumstances, simply by leaving it to the deceased to make whatever arrangements regarding lighting as he saw fit. The Judge's remarks on this subject, quoted above, tend to blur two separate issues; the employer's duty of care to his employee, and the employee's obligation to take reasonable care for his own safety, the latter being relevant to the subsequent issue of contributory negligence, rather than the first question, whether the employer was in breach of his duty.

27. To the extent that the Judge was making the point the activity involved was a mundane one not requiring elaborate precautions, I agree. However, that is not to say no care was required at all. The Judge's reasoning amounts to saying that, since the employer authorised the deceased to obtain torches, the responsibility for seeing that adequate lighting was provided passed to the deceased. But the employer was on the spot, participating in the excursion, and aware of the condition of the path, the lighting available, and the risks involved in proceeding in the dark. He remained responsible for fulfilling the duty of care to his employee. In formal language, it was the employer's duty to take reasonable steps to see that his employee was appropriately equipped for the walk; but on the facts, the only point was the provision of lighting. In the dark, the path presented foreseeable risks, and reasonable care required that the deceased was provided with adequate means of seeing the way. There were three torches for the six members of the party. Mr Zai took one, and the photographer required another, leaving one torch for the remaining 4 members including the deceased. That the deceased was not provided with adequate lighting is self-evident. So in agreement with the Court of Appeal, I conclude that the Judge's view on breach of duty was wrong.

28. I have also reached the same view as the Court of Appeal on causation. The deceased would not have stepped into the ditch knowingly. The inference that lack of adequate lighting was at least one cause of the mishap is irresistible.

29. The appellant also challenged the Court of Appeal's apportionment of liability. The Court appears to have considered the deceased at fault in several respects; not ensuring he acquired a torch for himself, failing to delay his walk until it became lighter, and not taking sufficient care in walking up the path when he did not have a torch available.

30. There is force in the appellant's argument that as a mature experienced person, the deceased should have appreciated the risks of the venture. The deceased's share in the responsibility could be regarded as quite substantial. However, apportionment for contributory negligence is a discretionary exercise, and there are many precedents to the effect that an appellate court is justified in interfering only in exceptional cases, see e.g. The Macgregor [1943] AC 197. This principle may apply with less rigour where, as here, the apportionment was made on appeal, rather than by a Judge who had the advantage of hearing the witnesses, and thus had the best opportunity for obtaining the feel of the whole case and assessing the degrees of responsibility. Nevertheless, this Court should not interfere unless the result is outside the limits reasonably available to the Court below. It will not simply substitute its own discretionary judgment. While 20% may be seen as a conservative assessment, I do not regard it as outside reasonable limits.

31. Accordingly, I would dismiss the appeal with costs.

Chief Justice Li :

32. The Court unanimously dismisses the appeal with costs. An order is made for the taxation of the respondent's costs in accordance with the Legal Aid Ordinance and Regulations.