YAU WONG FUI v. WINNING FIRE ENGINEERING LIMITED AND OTHERS

1996, No.PI110

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an action by the Administrator of the estate of the late YAU Ka-woon against the Defendants for damages pursuant to the Law Amendment and Reform (Consolidation) Ordinance, Cap.32 and the Fatal Accidents Ordinance, Cap.22. The Deceased died on 22 August 1991 as a result of falling from the 13th floor through the shaft of a mechanical skip.

2. The 2^nd Defendant Hung Sun Building Construction Company Limited ("the Company") was the principal contractor for the buildings works at Nos.252-256 Castle Peak Road. The 1^st Defendant Winning Fire Engineering Limited was the contractor responsible for the fire services installation works. The 3^rd Defendant Wu Chun-kwok was a sub-contractor of the 1st Defendant. The 4^th Defendant Ng Yip trading as Wing Yip Engineering was contracted by the 2^nd Defendant for the installation and operation of a mechanical skip which was erected against the exterior wall of the building from the ground floor level to the roof-top level.

3. Default judgment was obtained against the 3^rd Defendant on 24 March 1995.

4. On the first day of the hearing the Plaintiff withdrew the action against the 4^th Defendant. The 1^st Defendant did not appear at the trial. One Mr Chan, a director of the 2^nd Defendant, appeared on behalf of the Company and gave evidence on its behalf.

The Accident

5. No one saw how the Deceased had fallen to his death. I find the evidence of PW1 Lau Lap Wing together with the statement which the site foreman Mr Pun Choi Lai made to the police and the report of Inspector Ghafoor of the Labour Department to be useful in establishing how the Deceased had met his death.

6. From both the oral testimony of PW1 Lau Lap Wing, a co-worker of the Deceased and the witness statement of Pun Choi Lai, it appears that this was what happened : in the morning of 22 April Lau and the Deceased received instructions from D3 to deliver 5 water pumps to the site. Two of the pumps were to be installed on the roof. They arrived at the site and proceeded to inspect the roof-top and after which they returned to the ground floor. Lau then spoke to Mr Pun, the site-foreman and asked for permission to use the skip to lift the pumps. Pun agreed. The Deceased then went upstairs to receive and to unload the 2 pumps. Lau remained on the ground floor so that he could place the pumps onto the skip.

7. It is not in dispute that the usual practice is for the skip operator to mark on the steel wire the approximate position of the floor levels. The person at the other end of the skip would communicate with the operator by means of a bell signal via a dedicated bell switch for the fine leveling adjustment of the skip. The bell, as was in this case, would be installed close to where the operator is stationed. The signal would be one ring for stop, two rings for moving up and three rings for moving down. Lau said he was, at the time, not sure if the Deceased was aware of the signal arrangements or if he was aware of the whereabouts of the bell switch.

8. Lau told the court that he placed the two pumps onto the skip and Mr Chu, the skip operator then raised the skip to what he thought was the roof level by reference to the marking on the steel wire. The bell signals for fine adjustments which Chu expected from the Deceased did not come. The three men on the ground floor shouted to the Deceased and asked him why he did not give the bell signals. The Deceased was heard to reply by shouting back "what! what!". Pun then instructed Lau to go upstairs to check what was happening.

9. Lau went up to the roof but he failed to locate the Deceased. He then went down one floor to the 13^th floor where he noticed that the bottom of the skip was about his own height above the 13^th floor level. He also noticed that one of the pumps was on the loading platform and the other pump was still in the skip. The gates to the hoistway were wide open. Later he looked down the hoistway and saw some policemen down below and he also saw a body floating in a pool of water in the bottom of the hoistway. It turned out to be the Deceased.

10. The statement of the foreman Mr Pun to the police was produced as exhibit P-14 and the contents confirmed Lau's evidence. After Lau went upstairs to locate the Deceased, Pun heard 2 bell-rings and saw the skip moving up. Some 10 seconds later he heard a loud "bang" and saw the Deceased lying in the bottom of the hoist.

11. Inspector Ghafoor of the Labour Department attended the scene later on the same day and inspected the scene of the accident. He noted in his report the following observations :

1. The bell system was working properly.

2. One bell switch was found on the 13th floor platform and there was no switch on the roof.

3. The bottom of the skip was about 1.4 meters above the loading platform of the 13^th floor and the top was 2.6 meters above it. At that level it was not possible for anyone to unload the pump from either the 13^th floor or from the roof.

Based on his observations the Inspector concluded that due to a possible misunderstanding between the Deceased and Mr Chu, Chu was not able to bring the skip to the roof level. On seeing that, the Deceased went down from the roof to the 13^th floor to unload the pumps and he managed to unload one of them from the skip. It was possible that the Deceased heard someone shouting to him from the ground floor about giving bell signals by the bell switch and that was what he did. He then resumed dragging the remaining pump from the skip and it was at this time that Chu responded to the bell signal and raised the skip slightly. The sudden movement of the skip caused the Deceased to lose his balance and to fall through the hoistway.

12. Nothing in the evidence suggested that Inspector Ghafoor's conclusion was erroneous. The other possible explanation was that the Deceased did not know how to operate the bell switch or to give the appropriate signals. He went down to the 13^th floor nevertheless and started unloading the pumps. As he was dragging the pumps he stumbled onto the switch and Chu down below mistook it as a genuine signal and raised the hoist.

13. In either scenario it was the upward movement of the skip which caused the Deceased to lose his balance and fall. It appears to have been the case that no one had inquired from the Deceased as to whether he knew how to communicate with the skip operator by means of the bell switch before he was dispatched to the roof.

Who was the direct employer of the Deceased?

14. The answer to the questioned posed lies in an application form for employment containing the Deceased's personal particulars and also in a wage receipt record kept by the 1^st Defendant. Mr Lau, the co-worker, was under the impression that he was employed by the 3^rd Defendant but I think Lau's evidence must be displaced by the documents in the custody of the 1^st Defendant referred to above. I find that the 1st Defendant was, at the material time, the direct employer of the Deceased.

Liability of the 1st Defendant

15. As the direct employer of the Deceased the 1^st Defendant Winning Fire Engineering Limited was under a duty to provide a safe system of work and a safe place of work. The evidence before the court is such that the 1^st Defendant had failed in its duty in not giving proper instructions to the Deceased, either by Mr Lau or at request of Mr Lau through Mr Chu, in operating the bell switch. Lau was negligent in assuming that the Deceased was conversant with the bell signal system and in allowing him to go up to the roof by himself knowing full well that he would have to communicate with the skip operator by using the bell switch. The 1^st Defendant, being the employer of Mr Lau, must be vicariously liable for the negligence of Mr Lau who I find is at the material time employed by the 1^st Defendant.

Liability of the 2nd Defendant

16. The 2^nd Defendant Hung Sun Building Construction Company Limited was the general contractor responsible for the site and as such it responsible for the safe operation of the hoist. Mr Chu was the operator of the skip at the time of the accident. Mr Chu was negligent in that he had failed to ensure that the Deceased understood the bell signal system before allowing him to go to work upstairs and he had failed to communicate with the Deceased properly before he adjusted the level of the skip. The 2^nd Defendant was therefore liable for the negligence of Mr Chu which had a causal connection to the accident and I so find.

17. On 24 March 1992 at North Kowloon Magistracy Summonses Nos. 6517, 6518 and 6519 of 1992 the 2^nd Defendant was convicted of offences contrary to Regulations 31(1)(c), 32(2) and 38N(1) of the Construction Sites (Safety) Regulations. The 2^nd Defendant was charged with failing to provide: a proper enclosure for hoistways; an effective signaling system in the operation of hoists and suitable fences and guardrails on the working platform. Mr Chan Chi Shing, a director of the 2^nd Defendant, admitted in this court that the Company pleaded guilty to the summonses because the charges stated the truth. By pleading guilty as it did the 2^nd Defendant admitted that it had failed to discharge its statutory duties under the Regulations. I find that such breach had a causal connection with the Deceased's accident.

18. Such duties aside, the 2^nd Defendant, by virtue of the fact that it is the principal contractor of the site, it is the occupier in law and in fact of the site premises in which the hoist machinery was located. As the Deceased was a lawful visitor of the site, section 3(2) of the Occupiers Liability Ordinance applies. Again the failure of the 2^nd Defendant in ensuring that the Deceased had a proper understanding of operating the switch and bell signals and the fact that no bell switch was provided on the roof level was a breach of the 2^nd Defendant's duties as an occupier towards the Deceased.

19. On the reasons given, I find that the 2^nd Defendant is liable to the Deceased by reason that it is the occupier of the premises and also by reason of its breach of the Statutory Regulations.

Contributory Negligence

20. The burden of proof is on the Defendants to show that the Deceased was negligent in someway in causing his own death. It is apparent from the evidence that the Deceased had never been asked if he was familiar with the operation of the skip nor was he warned of the dangers of operating the system. Without any such warning or knowledge of the potential risk, the Deceased proceeded to the roof and eventually try to unload the pumps on the 13^th floor. I cannot say that in any way the Deceased was to be blamed in causing his own death. The plea of contributory negligence must therefore fail.

Apportionment of Liability

21. The liability of joint tortfeasors are joint and several. As between the Defendants I would apportion the blame as :

The 1^st Defendant as the direct employer: 20%.

The 2^nd Defendant as the party who was in overall control of the site and more particularly for the safe operation and maintenance of the skip: 75%.

The 3^rd Defendant as the party who had assigned the duties of moving the pumps: 5%.

Quantum

22. The Deceased was born on 23 May 1968 and he was 23 when he died. He worked as a fitter earning $9,100 per month. He was single and resided with his father aged 47 and mother aged 45. He had one younger sister aged 19 at the time of the accident.

23. Damages for bereavement under Section 4(3) of the Fatal Accidents Ordinance had been agreed by the 1^st and 2^nd Defendants at $70,000.

24. Funeral expenses amounted to $64,150 and the sum is not disputed.

Dependency claims under the FAO

25. According to Madam Tang, the mother of the Deceased, the Deceased contributed $6,000 each month to the family income pool. Madam Tang worked as a tea-lady earning $3,000 per month and her monthly personal expenses was $1,500. The father was suffering from poor health and was not making any contribution. The younger sister was working as a sales lady and was not making any contributions. The monthly pooled income was $7,500 out of which an average of $5,500 was used to meet the regular expenses. This left a surplus of $2,000 and this sum would be set aside as the family savings. The sums appears to be reasonable and I have no reason to doubt the evidence of Madam Tang.

26. Based on the a monthly expenditure of $5,500 the share per person in the Deceased's family of four amounted to $1,375. It follows that Madam Tang was self-supporting as she contributed $1,500. The portion of the family savings credited to her would be $1,500 - $1,365 = $125. The Deceased was therefore able to save $2,000 - $125 = $1,875. His net contribution to his father and younger sister was $6,000 - ($1,375 + $1,875) = $2,750. The value of the father's and the sister's dependency was $2,750/2 = $1,375.

27. There is evidence from Lau who is a workmate of the Deceased that he is now being paid $700 per day for a job of similar nature. On a 26 working day month, Lau would be able to earn $18,200. His evidence is supported by his tax return of his previous job for the year 1995/1996 which was $204,029.00. Over a twelve-month period his average monthly income would be $17,002.40. I accept Mr Lau's evidence that his present daily wage is $700.

28. Had the Deceased survived, he would be earning the same amount and he would have increased his monthly contribution to the family income pool. I think it would be safe to assume that his contribution would increase by 12% each year and so would be the regular monthly savings.

29. In the case of the sister, I take the view that her income would increase with the years and eventually she would no longer be partially dependent on the family income pool. Her share would either be enjoyed by the mother who will become less disposed to work with the increase of age or that there would be more surplus income for her to go towards the regular monthly savings.

Pre-trail Dependency

30. For the first 3 years when the sister remained a dependent, only the father and the sister would have a claim. The contribution per share by the third year would have been :

$1,375 x 112% x 112% x 112% = $1,931.80.

31. This would give a median figure of $1,653.40 for each month.

32. The dependency claim for the father and the sister would each be :

$1,653.40 x 36 months = $59,522.40.

Thereafter the sister would become independent and her share would have gone to the mother. The contribution for the year 1996 would have been :

$1,931.80 x 112% x 112% = 2,423.20.

33. The median figure would be $2,177.50.

34. The dependency claim for the father and the mother for the period between August 1994 and the date of trial (2 years 6 months and 4 days) would be :

$2,117.50 x 30 months and 4 days = $65,615.30.

Future Dependency

35. Given the ages of the parents, the poor health of the father and the Deceased was the only son of the family, it would be appropriate to adopt an overall multiplier of 11 for the parents. The parents' future dependency claim would each be :

$2,423.20 x (11 years - 66 months 4 days) = $159,608.00.

Loss of Accumulation of Wealth

36. The mother used to save $1,875.00 on behalf of the Deceased. On the basis that the Deceased would have increased his monthly contribution by 12%, it follows that the mother would be able to save at a corresponding annual increase. The monthly saving, as at the date of the hearing would be :

$1,875.00 x 112% for 5 years compound = $3,304.40.

The average figure would be :

($1,875.00 + $3,304.40)/2 = $2,589.70.

37. On a multiplier of 16, the pre-trial loss is :

$2,589.70 x 66 months and 4 days = $171,265.00.

38. The post-trial loss will be :

$3,034 x (16 years - 66 months 4 days) = $415,913.80.

Summary on Quantum

LARCO

(i)	Funeral expenses	$64,150.00
(ii)	Loss of Accumulation of wealth
	(a) pre-trial	$171,265.50
	(b) post-trial	$415,913.80

FAO

(iii)	Bereavement		$70,000.00
(iv)	Dependency
	(a)	pre-trial
		father	$125,137.80
		mother	$65,615.30
		sister	$59,522.40
	(b)	post-trial
		father	$159,608.00
		mother	$159,608.00

Interest

(v)	On general damages at 2% from
	date of writ (16 September 1993)	$4,822.20
(vi)	On special damages at 5.75%
	from date of accident i.e. (i),
	(ii)(a)and (iv)(a) less Employee's
	Compensation:
	$485,691.10 - $190,000.00 = $295,691.10	$93,701.20
	Total	$1,389,344.20
	Less Employee's Compensation
	$190,000.00
		$1,199,344.20

39. The above sum of $1,199,344.30 is to be paid into court within 14 days of this order.

40. Cost to the Plaintiff against the 1^st, 2^nd and 3^rd Defendants.

41. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.