LEUNG KIN FAI v. IDS LOGISTICS (HONG KONG) LTD

CACV 192/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 192 OF 2009

(ON APPEAL FROM DCPI NO. 2223 OF 2007)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a judgment of Her Honour Judge Mimmie Chan given on 11 May 2009.  The matter before the judge was a trial of a personal injuries action.  The plaintiff had been injured whilst alighting from a delivery truck operated by the defendant.  The action had been brought on the basis of negligence and breach of statutory duty.  The judge considered that the plaintiff had failed to prove either of those two matters, nevertheless, the judge went on to consider the matter of quantum and came to the conclusion that, had she found in favour of the plaintiff, the plaintiff would have been entitled to $619,727.89.

2.  The plaintiff appealed against the judge’s finding in respect of breach of statutory duty.  At the conclusion of the hearing of this appeal, judgment was reserved which we now give.

The trial below

3.  The plaintiff was employed as a delivery man by the defendant.  As part of his duties he travelled in a lorry with two other persons, namely the driver and the supervisor.  At about 8 pm on 17 December 2004 he was alighting from the vehicle in order to make a delivery and, as he did so, he slipped and fell.  As a result, he suffered injuries which prevent him from continuing to work as a delivery man.  Although the plaintiff’s pleadings in respect of negligence and breach of statutory duty were, for the most part, generalised allegations, paragraph 6.3, under the heading particulars of negligence, refers to the failure, on the part of the plaintiff, to ensure that the step, or steps, of the lorry in which the plaintiff was travelling was not oily.

4.  The judge accepted that it was probable that the plaintiff had slipped as a result of stepping on an oily or slippery patch or stain on the footrest whilst he was alighting from the vehicle.  As the judge indicated, that oily or slippery patch or stain was not on the step of the truck but was on the footrest inside the truck.

5.  There had been a suggestion that the oily patch or stain had been caused by workers eating or drinking inside the vehicle.  That suggestion had, apparently, come from counsel.  It did not come from the evidence of either the plaintiff or his supervisor who gave evidence.  The Senior Transport Supervisor, a Mr Chin, who gave evidence on behalf of the defendant, did indicate that employees might take some of their meals inside the vehicle, but that is as far as the evidence in that respect went.   There was no indication in the evidence, that any of the employees had eaten in the vehicle prior to the plaintiff's accident.

6.  The judge came to the conclusion that there was no evidence of any other or similar occurrence of any such oil or food stains inside the defendant’s vehicles and did not consider that the defendant was at fault and had been negligent.

7.  In paragraph 17 of the judgment the judge set out the effect of the evidence given both by the plaintiff and Mr Chin as to how and when the defendant’s vehicles would be cleaned.  In summary there was no fixed policy or rule.  The vehicles would be cleaned only when the drivers were free to do so.  Although the supervisor recommended to his workers that the trucks should be cleaned once a week that was not strictly enforced.  Mr Chin also gave evidence, which the judge accepted, that he would be stationed at the exit when trucks departed each morning and he would carry out random checks on the cleanliness and general condition of the trucks and, if he found any truck to be dirty, he would instruct the team concerned to have the truck cleaned on the following Saturday, when, generally speaking, they would be less busy.  The judge came to the conclusion that she was not satisfied that the accident was caused by the defendant’s failure to take reasonable or reasonably practicable steps to ensure the safety and health of its employees.

This appeal

8.  On this appeal Mr Lin, who appeared on behalf of the plaintiff in this court but not in the court below, put the plaintiff’s case on the basis of breach of statutory duty alone.  The relevant statutory duty for the purposes of this case is contained in section 6 of the Occupation Safety and Health Ordinance Cap. 509 which reads:

“RESPONSIBILITY FOR SAFETY AND HEALTH OF EMPLOYEES AT WORK

(1)    Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer’s employees.

(2)    The cases in which an employer fails to comply with subsection (1) include (but are not limited to) the following-

(a)  a failure to provide or maintain plant and systems of work that are, so far as reasonably practicable, safe and without risks to health;

(b)  a failure to make arrangements for ensuring, so far as reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage or transport of plant or substances;

(c)  a failure to provide such information, instruction, training and supervision as may be necessary to ensure, so far as reasonably practicable, the safety and health at work of the employer’s employees;

(d)  as regards any workplace under the employer’s control-

(i)    a failure to maintain the workplace in a condition that is, so far as reasonably practicable, safe and without risks to health; or

(ii)    a failure to provide or maintain means of access to and egress from the workplace that are, so far as reasonably practicable, safe and without any such risks;

(e)  a failure to provide or maintain a working environment for the employer’s employees that is, so far as reasonably practicable, safe and without risks to health.

(3)    An employer who fails to comply with subsection (1) commits an offence and is liable on conviction to a fine of $200000.

(4)    An employer who fails to comply with subsection (1) intentionally, knowingly or recklessly commits an offence and is liable on conviction to a fine of $200000 and to imprisonment for 6 months.”

9.  What was said in this case was that, given the judge’s finding that there was an oily or slippery patch or stain on the footrest, that, in itself, was sufficient to show that there had been a failure to provide or maintain the plant, namely the vehicle, safe and also there was a failure to maintain the workplace in a condition that it was safe and, likewise, the means of access to and egress from the workplace were not safe and without risks.  The time at which such matters were to be judged was immediately prior to the accident: see for example Austin Rover Limited v Inspector of Factories [1990] 1A.C. 619 at 634 D-E and H per Lord Jauncey.

10.  As already indicated, the suggestion that the oily or slippery patch had been caused by food dropped by the occupants of the vehicle was a suggestion that had come from counsel and not from the evidence.  There was no evidence as to how long the oily or slippery patch had been on the footrest.  Having established that there was an oily or slippery patch, it was said that it was then for the defendant to establish that it was not reasonably practicable to prevent the presence of that oily or slippery patch.  That argument appears to me to be valid.

11.  Leaving aside any linguistic argument arising from the wording used by the judge in relation to whether the defendant had failed to take reasonably practicable steps which might give rise to questions of onus of proof, it appears to me that what was set out in paragraph 17 of the judgment could not be said to a system whereby the plaintiff had performed its duty to keep the vehicle safe “as far as reasonably practicable”.  It is not for this court to indicate what would be appropriate or reasonably practicable steps to ensure the cleanliness of the vehicle and those parts of the vehicle which the employees would need to tread on or hold, it is sufficient to say that the random inspections and generalised exhortations to keep vehicles clean could not be said to be as far as reasonably practicable.

Conclusion

12.  I would, therefore, allow this appeal, set aside the judgment below and make an award of damages in favour of the plaintiff of $619,727.89 together with interest at the appropriate rates.  I would make an order nisi of costs in favour of the plaintiff both here and below.

Hon Le Pichon JA:

13.  I agree.

Hon Cheung JA:

14.  I agree with the judgment of Rogers VP.  An argument was raised whether under Section 6 of the Occupation Safety and Health Ordinance (Cap. 509) the provision for a ‘safe’ workplace requires considerations of reasonable foreseeability.  As demonstrated by the line of cases of Larner v. British Steel plc [1993] 4 All ER 102, Mains v. Uniroyal Englebert Tyres Ltd [1995] IRLR 544 and Baker v. Quantum Clothing Group[2009] PIQR P332, whether a workplace is safe is to be decided purely as a question of fact and it is wrong to imply a requirement of foreseeability.  The rationale is that if this requirement is implied, the result frequently would be to limit the success of an employee’s claim based on breach of statutory duty thereby reducing the utility of the statutory provision and the protection it afforded.  Reasonable foreseeability only becomes relevant when the employer assumes the burden of showing that it is not reasonably practicable to ensure the employee’s safety.  The latter issue does not arise in the present case when the employer did not even have a system on the cleaning of the vehicle.