XCHRX LAU KA KUI v. OTIS ELEVATOR CO. (HK) LTD.

HCPI 924/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 924 OF 1997

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J U D G M E N T

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1. This is an appeal from a decision of Master Poon refusing to set aside a default judgment for damages to be assessed.

2. The writ was issued on 5th September 1997 and served on 19th January 1998. It appears that the Defendant notified its insurance company which in turn instructed solicitors, but not soon enough; the default judgment was issued on 10th February 1998 and the solicitors only came on the record two days later. It is not in dispute that the judgment was regular. There was not much delay.

3. Following the line of authorities followed by the Court of Appeal in Premier Fashion Wears Ltd. v. Chow Cheuk-man [1994] 1 HKLR 236, I have to ask whether the Defendant "shows a real prospect of success" and whether its case "carries some degree of conviction"; or in the words of Lord Wright in Evans v. Bartlam [1937] AC 473, which was referred to in Premier Fashion, whether the Defendant has disclosed "merits to which the Court should pay heed". See also Dao Heng Bank v. Chan Chiu Cheung, HCA 6653/96 in which Stone J. asked these same questions.

4. This is a personal injury case. The Plaintiff was employed as a labourer by the Defendant, a lift and escalator contractor. His case is that on 8th September 1994, his first day working for the Defendant, he and a co-worker were instructed to move some rolling wheels which weighed about 200 lbs, and were 18" in diameter and 8" thick. As he was rolling one such wheel along a wooden plank which was placed on top of various construction materials which were scattered around the work place, the wheel went off track. The Plaintiff slipped and lost his balance in trying to get the wheel back on track; and the wheel fell onto his elbow and crushed it so that he suffered serious injuries.

5. The Plaintiff pleads unsafe system and place of work, failure to provide proper supervision and failure to provide adequate tools and equipment.

6. The Defendant's case, as appears from the affirmations of its Chief Technician Shum Ki Cheung, is that the Defendant and one Lee were instructed to unpack and move buffers. According to Mr Shum, a buffer is made of two metal cylinders. The larger one has a base diameter of 200 mm and the smaller, which is on top of it at right angles, a diameter of 60 mm. The whole assembly is 1,300 mm high and weighs about 70 lbs. Mr Shum told the Plaintiff to move the buffers with their bare hands as each buffer only weighed 70 lbs. He believed that a normally built adult in Hong Kong could move the buffer with bare hands along the floor and no transporting device was needed. There was no plank and the floor was clean and should not be slippery. At about 2 pm on the day in question he found the Plaintiff applying medicated oil. The Plaintiff claimed to have sprained his elbow but said he could go on working, which he did for the rest of the day. Only the next day did the Plaintiff complain again and ask for sick leave.

7. There are two totally different stories being told here about what it was that the Plaintiff had to move. He says it was a wheel, 200 lb in weight, 18" in diameter and 8" thick. The Defendant says it was a buffer 70 lb in weight in the form of an upright cylinder, about 8" in diameter with a small cylinder about 2.4" in diameter on top and at 90 degrees to the large cylinder, the whole thing standing about 51" high. (I have made approximate translations of millimetres to inches.)

8. There are other wide differences between the parties on the facts. The Plaintiff says that he rolled the wheel on a plank over a slippery floor covered with all kinds of debris, which would make the plank unstable and the job hazardous. Mr Shum says that the Plaintiff and the other labourer had to move the buffer over a clean though rough concrete floor.

9. The two pieces of equipment seem to be vastly different not just in weight but also in size and shape. I brought this to the attention of Counsel at the outset because it seemed to me from the tenor of both skeleton arguments that this had not been fully appreciated. Neither side seemed particularly concerned with the difference between a wheel and a buffer. Both referred to "buffers/wheels" as though the two were interchangeable. Indeed from the Plaintiff's skeleton argument put before the learned Master, it seems that the advocate who then represented the Plaintiff was similarly not concerned with the difference between the two things.

10. Mr Lee for the Defendant seemed to think that the buffer to which his witness was referring was shaped like a dumb-bell or a wheel with two flanges, which could roll on the flanges. That is, I think the Plaintiff's case; the wheel in question being, according to what the Plaintiff said in his statement for his Employee's Compensation case, the wheel for wires which make the lift go up and down. One would expect such a wheel to have flanges to keep the wires on it. But that does not accord with Mr Shum's description.

11. Those instructing Mr Lee were able to make a sketch of the buffer which appeared to be in the form of two concentric cylinders 60 mm and 200 mm in diameter, like the kind of hydraulic cylinder with which most people are familiar as the shock absorber on a motor car, or the hydraulic cylinders which can be seen operating the lifting arms of the mechanical diggers and crane-equipped lorries which are so familiar on our streets. Of course this is not evidence, but Mr Shum's second affirmation and his exhibit SCK-5 clearly show that what the Defendant is saying is that the piece of equipment which the Plaintiff had to move was a hydraulic device; so it was probably in the form of two concentric cylinders.

12. Once this had been cleared up, Mr Lee for the Defendant relied to some extent on the point, saying that the facts put forward by the Defendant were potentially credible. Mr Lam for the Plaintiff took the position that even if the facts were as put forward by the Defendant, the Defendant could not escape liability. He argued that on the evidence of the Defendant, there was no special planning for safe procedure; only minimal instructions were given with no particular instructions as to safety precautions; though there had been an orientation programme, it did not include instructions on lifting or moving equipment; there was no supervision of the workers who were unskilled and temporary; and there was no safety equipment.

13. Mr Lam relies on the dictum of Bokhary J.A. in Premier Fashion at p. 380J that :

"No defence is any good if it will not work in law even if based on fact. Likewise, no defence, whatever its effect in law if believed, is any good if it does not enjoy any real prospect of being believed."

14. Now clearly the wheel and the buffer are, on the evidence before me, greatly different in weight, size and shape. It takes little imagination to see that moving the one is very different from moving the other. It is difficult to imagine that two men could safely lift the wheel described by the Plaintiff. They would have to roll it and if they were not rolling it on a flat, clean floor, that could be hazardous. It takes little imagination to see that planning, instructions and probably some sort of lifting equipment would be needed.

15. However the Defendant's case is that what was to be moved was not a wheel but a buffer. Mr Shum believed that a normally built adult would be capable of moving a buffer with his bare hands and gave instructions on that basis. From his description of the buffer, it seems to me that any two normal men should have no difficulty in picking it up by the ends and carrying it, without any particular instructions or supervision and without any precautions. One man could push it along the floor, or lay it on the floor and roll it; and it could not tip over as a wheel might because its length is much greater than its diameter.

16. It is trite law that the employer's duty is to provide a safe system of work but what must first be established is what the work was. Some kinds of work need all manner of preparation and instructions and safety precautions, others need only a simple instruction to a worker to get on with the job. If this matter goes to trial, the primary issue for decision will be whether the Plaintiff was instructed to move a wheel or a buffer and the Court will not be able to decide on what was needed for a safe system of work until it has decided that.

17. It seems to me therefore that the Defendant shows a real prospect of success if its case is believed on the facts. It may be that a trial court would, after considering the evidence, including expert evidence, find that the Plaintiff was told to move a buffer and not a wheel, but that it was not enough simply to tell him and his co-worker to move it by hand. But that conclusion certainly does not seem to me to be so obvious and inevitable as to demonstrate that the Defendant has no real prospect of success. There must therefore be a trial on the primary issue. There is nothing on the face of the evidence before me to suggest that the Defendant does not have any real prospect of being believed.

18. It follows that the judgment must be set aside. The appeal is therefore allowed, and the judgment is set aside. The Defendant is at liberty to file its defence within 14 days hereof. Costs (nisi) of the appeal and the summons will be to the Defendant.