BARRY KEITH WOOD v. WAH TUNG (E&M) LTD. AND OTHERS

HCPI 1004/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1004 OF 1998

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J U D G M E N T

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Dramatis Personae:

1. The 4th defendant was the principal contractor at a construction site at Chek Lap Kok (hereinafter referred to as "the site"), pursuant to Contract No. 302 with the Airport Authority for the construction of the airport terminal.

2. The 3rd defendant was the principal contractor at the site pursuant to Contract No. 320 with the Airport Authority responsible for building services of the airport terminal. It sub-contracted part of the work at the site to the 2nd defendant.

3. The 1st defendant was a sub-contractor of the 4th defendant, under Contract No. 302, responsible for installation and maintenance of temporary lighting at the site. It also sub-sub-contracted part of the building services work under Contract No. 320 from the 2nd defendant.

4. The plaintiff was employed by the 1st defendant as a quality control inspector. His duty was to inspect the pipe work including the fitting out of the sump pump by the workers of the 1st defendant.

The accident:

5. On 14 January 1998, the plaintiff was assigned to inspect the pipe work in the East Hall of the airport terminal building. He had with him the relevant drawing, a measuring tape and his own torch. He had to inspect the pipe work in an L-shaped room, which happened to be the sump pump room. He located the room and opened the door, which was not locked. There was no light inside. He tried the lighting switches, but they were not functioning. The floor was flooded with water which overflowed into the corridor. The water was about 2 inches deep. He could not see the floor as the water was murky and there were debris all over. He started his inspection using the light from his torch. As he walked into the room and turned round the corner while following the pipes, he fell into the sump pump pit and was covered in water up to his chest.

6. He pulled himself out of the pit and went out of the room. There he met Mr Slater, the works manager of the 4th defendant, who informed the plaintiff's supervisor, Mr Riedijk. Mr Riedijk then arrived and took the plaintiff to the safety office of the 3rd defendant, who arranged for the plaintiff to be taken for medical treatment. He was found to have suffered superficial abrasion on his back.

Issue estoppel:

7. The main defence is that the accident never occurred and the plaintiff was put to strict proof. Mr Wright submitted that as judgement had been obtained by consent against the 1st to 3rd defendants in the employees' compensation ("ECC") proceedings in the District Court, the defendants are precluded from denying that the accident had occurred and that it arose out of and in the course of the plaintiff's employment with the 1st defendant. That certainly is correct as against the 1st to 3rd defendants who were parties to the ECC proceedings, but not as against the 4th defendant who was not a party. Miss Lau for the defendants submitted that the 1st to 3rd defendants admitted liability on the basis of the plaintiff's report, without the benefit of a full inquiry and to save costs. I do not think that is a valid ground for setting aside the consent judgment. However, I have to determine the same issues on their merits as against the 4th defendant who was not a party to the consent judgment. Hence, for the purpose of the present proceedings, I shall ignore the consent judgment as against all defendants and determine the issues on their merits on the basis of the evidence.

Power failure and flooding:

8. The defendants sought to contradict the evidence of the plaintiff by calling Mr Smith, the Commercial Manager of the 2nd defendant. Mr Smith said that since 6 January 1998, he had been inspecting the baggage handling system, which was being commissioned and testing was being performed round the clock. The baggage handling system was located at an area immediately adjacent to the sump pump room. If there were flooding, the testing would be stopped. He was not aware of any reports of overflowing or flooding or power failure in that area since early January 1998. But he frankly admitted that he had not been to the sump pump room on 14 January.

9. According to the correspondence and photographs available, flooding and power failure was a regular state of affair in the airport terminal while under construction, though those reports related to other areas. It is not surprising that these daily occurrences were not reported, unless serious incidents such as accidents had occurred.

10. Mr Smith said the power source of sump pump room and the baggage handling centre was the same and no such power failure had been documented in the 2nd defendant's very comprehensive record. I think Mr Smith over-simplified the situation. Though the sump pump room and the baggage handling centre have a common power source, it is just common sense that the lighting system of the sump pump room and the lighting system of the baggage handling centre and the various other systems there may be protected by different circuit breakers or tripping switches or fuses. Thus failure of the power supply in the sump pump room may not necessarily mean that the power supply in the baggage handling centre must also fail and be documented. Such simple failure could be readily and easily put right by a very simple operation without being documented at all.

11. On the contrary, the evidence that shortly after the accident the plaintiff's supervisor, Mr Riedijk, upon the request of the 4th defendant's Works Manager, Mr Slater, collected the plaintiff at the corridor outside the sump pump room and took him to the safety office for medical treatment was uncontradicted. At the time, the plaintiff was injured and soaked up to the chest. Mr Riedijk confirmed that there was no light in the room and he had to shine his way with his very powerful torch. He confirmed there was flood, but he could see the sump pump pit because his torch was more powerful and of course, he had been alerted of the danger.

12. Mr Slater and the safety officer of the 3rd defendant, who could have validly challenged the plaintiff's evidence are not called. Having weighed the plaintiff's and Mr Riedijk's evidence against that of Mr Smith's and having considered the totality of the evidence, I give no weight to Mr Smith's evidence that there was no flooding or power failure simply because he did not find any such reports from his record. I accept the evidence of the plaintiff and Mr Riedijk. I find that when the plaintiff entered the sump pump room, it was covered with murky water to a depth of 2 inches and there was no light inside.

Whether plaintiff was injured:

13. Miss Lau submitted that the pit was 2.4 metres deep and if the plaintiff had fallen into the pit he would have suffered very serious injuries or would have been drowned. That is an over statement. There are rungs inside the pit. Probably the plaintiff found some support on one or some of the rungs without falling to the bottom of the pit or could have hold onto the floor with his arms and hands. According to the contemporaneous medical report, the plaintiff was found to have suffered some superficial abrasion at the lower back. This is consistent with his fall. I do not think Miss Lau's suspicion justified. I find that the plaintiff had fallen into the pit and suffered injury. Whether the plaintiff suffered as serious injuries as he now alleges is not a matter to be determined at this hearing.

Whether plaintiff was injured in the course of his employment:

14. Miss Lau for the defendants suggested that the plaintiff had no business to be in the room at the time of the accident. She referred to the plaintiff's statement in which he said he was to inspect six pipes in the room and that in his evidence he said that the pipes ran from the right wall over the door and up the left wall. From the photographs and drawings, there were at most three pipes for the plaintiff to inspect and none of them ran from the right wall over the door to the left wall. The plaintiff explained that during the statement taking his solicitors might have misunderstood him when he meant to say that his duty was to inspect six different types of pipe work. I accept that his evidence about the pipes running over the door was an honest mistake either on his part or that of his solicitors. It is understandable that he could not recall precisely what he had to inspect two years ago, when his main concern then was his injury and the fact that he fell into the sump pump pit. Miss Lau also criticised the plaintiff's failure in identifying the drawing which he used on the date of the accident. For similar reason, I think such failure is acceptable in the circumstances.

15. Miss Lau next argued that there was no reason for the plaintiff to be near the sump pump pit as the only pipe the plaintiff had to inspect was a brass potable water pipe which entered the room from over the door and then exited the room to the left. This is incorrect as Mr Riedijk pointed out that it was also the plaintiff's duty to inspect a soil pipe from the adjacent disabled toilet which ran across the room near where the sump pump pits were and exited on the left. Miss Lau argued that could not be the pipe the plaintiff inspected as the pipe entered the room from the left and not the right. I think some allowance must be given to the plaintiff as his concern then was the accident rather than the details of the pipe work he was to inspect.

16. Miss Lau submitted that the plaintiff had no business to be in the sump pump room in January because the sump pumps were not installed until early March and the inspection/testing notices were not issued by the 1st defendant until 21st May, four months after the accident. It is clear from Mr Riedijk's evidence that the plaintiff's duty was not confined to inspecting pipe work connected to the pump, but various other pipe works, e.g. drain pipe, soil pipe, potable water pipe, vent pipes etc. which could be inspected prior to the installation of the sump pump. How and when the pipe works were to be inspected depended on the progress of the work. Mr Riedijk or the plaintiff might consider it more convenient from their point of view to inspect the other pipe work first and leave the connection to the sump pump to be inspected at a later stage. That was a matter for them.

17. Miss Lau argued that the pipe work in the area had already been inspected by another quality control inspector, Mr Felix, in November 1997 as shown in the inspection/testing notices (Exhibits M and N). To that Mr Riedijik explained that Mr Felix had been assigned exclusively to inspect the pipe work inside the toilets and that did not include the pipe work in the sump pump room adjacent to the toilet. I have no doubt that the notices referred to the pipe work inside the toilet area only and did not cover the work to be inspected by the plaintiff.

18. I am satisfied that the plaintiff did suffer a fall and hurt himself. I could have no doubt about the evidence of the plaintiff and Mr Riedijik and find that when the plaintiff met with the accident, he was in the course of performing his duty as a quality control inspector of the 1st defendant and was not on a frolic of his own.

Breach of duty of care:

19. The defendants do not dispute that they were concurrently occupiers of the sump pump room. Accordingly they owe the plaintiff a common duty of care and a common law duty in negligence. This is the duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there: see section 3(2) of the Occupiers Liability Ordinance, Cap. 314.

20. There was a history of repeated power failure and flooding in the site, albeit the defendants say, not in the particular area. There were also previous similar accidents as to the dangers posed to people working on site by uncovered holes. All defendants must foresee the risk of people falling into unfenced open holes in the site. They should design a system of keeping the holes covered, or fencing them if they had to be left open and of warning of uncovered holes. General notices reminding workers of safety at site are in my view not adequate. They have to be such as to draw the workers' attention to the presence of holes, which might be uncovered or unfenced. The sump pump room is an enclosed room with no windows and therefore no natural lighting. In view of the frequent power failure in the site generally, it is particularly important that adequate notice should be displayed at the entrance warning workers of the existence of these pits which may be uncovered or unfenced in a chaotic construction site. In my view, the defendants have utterly failed in discharging their duty of care.

21. In addition, the 3rd defendant, being the principal contractor responsible for building services of the airport terminal, was in breach of Regulation 38P of the Construction Site (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap. 59, for not covering and fencing off the uncovered sump pump pit. The 4th defendant, being the principal contractor responsible for installation and maintenance of temporary lighting at the site was also in breach of Regulation 50, in ensuring that the sump pump room was adequately lit as to secure the workman's safety.

22. The 1st defendant, being the employer of the plaintiff, was under a duty to provide a safe system and place of work. In addition, it is also the sub-contractor of the 3rd and 4th defendants. In those trio capacities, it certainly was within its power and duty to see to it that the pits were either covered or fenced off if opened and the sump pump room adequately lit. To say the least, it should ensure that its workers were not permitted to enter an area that was inadequately lit, flooded and contained open pits. However, the general working atmosphere at the time was such that the inspectors were under a pressure to work regardless of those unsafe conditions. The 1st defendant was clearly in breach of its duty to provide a safe system and place of work.

23. Accordingly, I find that all the defendants were in breach of their duty of care owed to the plaintiff.

Contributory negligence:

24. Miss Lau submitted that the plaintiff was guilty of contributory negligence and by his want of care contributed to his injury. The plaintiff had spent most of his time working in construction sites and had received safety training elsewhere and from the defendants. He should be aware of the usual danger in a construction site and should not have entered the sump pump room which he knew was unlit and flooded.

25. She referred to Mr Smith's evidence that workers were instructed to stand still during a power failure until lighting resumed. I think those instructions were for installation workers and apply to situations of total power failure, when common sense would suggest one should stay where he was than to move around in uncertainty. I do not think those instructions were of universal application. The plaintiff was equipped with a torch, partly for the purpose of assisting him with his inspection duty and partly in case he had to work in the dark. It was not a case of total power failure. The corridor was lit. There was no reason for him to suspend his work and wait for the power in the room to resume or to look for other assistance. Indeed according to Mr Riedijk, the inspectors were expected to and did carry on work during power failures and flooding conditions in various parts of the site.

26. Miss Lau suggested that the plaintiff ought to have realised from the drawings there were pits inside the room. The plaintiff was to inspect high level piping. Of the high level pipe drawings he could have been provided, none of them show the pits at the floor level. I reject Miss Lau's suggestion and find that the plaintiff had no knowledge or reason to suspect there were uncovered pits inside the room.

27. Miss Lau submitted that the plaintiff should have investigated the source of the leakage before starting his inspection of the pipe work and that as there was no sign of bursting, the inference is that there must be holes inside the room from where the water came. According to the plaintiff the flood was just a pool of stagnant water with no active sign of bursting. It would be stretching common sense beyond its limits to suggest that there must be holes inside the room from where the water came. With respect to counsel, the standard of care suggested by Miss Lau is unrealistic and impractical. One must consider the situation as it was at the site and not in comfortable office or court environment.

28. The plaintiff entered the room as expected of a dutiful employee. He did check the condition of the room with his torch. He could not see the floor as the water was murky and there were debris flowing around. He did not look for a more powerful torch probably there was none around. He was wearing safety boots. It was just a balance of convenience whether to stop work or to walk a mile back to his office and return with a more powerful torch. Because of the pressure of work, he could not be blamed for carrying on, running the risk of walking on an uneven floor or over sharp objects. Applying the test of reasonableness in A C Billings & Sons Ltd v. Riden, [1958] AC 240, I find that the plaintiff acted reasonably in taking the risk, but an uncovered pit 2.4 metres deep was certainly not anything within his contemplation.

29. Miss Lau referred to the case of Rae v. Mars (UK) Ltd, [1990] 03 EG 80. In that case, the plaintiff surveyor entered a disused printing ink store to conduct his survey. The printing store was particularly designed for its particular purpose so that there was only a little edge behind a door. There was no lighting in the storeroom. The plaintiff went inside the room, stepped over the little edge and fell. The court held that the plaintiff was contributory negligent as he should have turned on his torch and shone it ahead of him or at least have cast his eye to the ground as he was entering the room. I think precedents are of guidance on general principles only. Each case has to be decided on its facts. The plaintiff in the present case had a torch and did use it to check the room. It was a case of balance of convenience. The uncovered pit was just not anything within his contemplation. I think he had exercised reasonable care for his own safety and cannot be regarded as being the author of his own wrong. On the contrary, the defendants have utterly failed in proving contributory negligence by the plaintiff.

Volenti:

30. The defendants also pleaded volenti non fit injuria. This pleading did not appear to have been actively pursued by counsel. Such defence must be applied with the greatest caution. As Hallett J held in Merrington v. Ironbridge Metal Works Ltd, [1952] 2 All E.R. 1101 at 1103:

"... a real assent to the assumption of risk without compensation must be shown by the circumstances ... If, however, a man acts under the compulsion of a duty, such consent should rarely, if ever, be inferred, because a man cannot be said to be 'willing' unless he is in a position to choose freely."

31. In the present case, it is clear that the plaintiff had no choice. Even according to his supervisor, Mr Riedijk, he would have been told to get on with his inspection. Miss Lau has referred to the total absence of any claim for man hours lost by quality control inspectors due to power failure as evidence that there were no power failure and that there was no pressure or urgency for the inspectors to carry on with their work. I do not agree. I think that evidence has to be understood on the basis of Mr Riedijk's evidence that the inspectors were provided with torches and to work even in the dark in view of the pressure of work and hence there was no claim for time lost due to power failure. I find that was the situation the plaintiff had to work and he had no choice. The defence of volenti must fail.

Conclusion:

32. I am satisfied that the defendants were in breach of their common duty of care owed to the plaintiff who suffered injury as a result. I also find that the plaintiff had not by his own breach of duty contributed to his injury, or that he had voluntarily assumed the risk. Accordingly, I enter judgment on liability in favour of the plaintiff against all the defendants, jointly and severally, and for damages to be assessed. I also make an order that the plaintiff shall have costs against all the defendants and the plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.