YU KOK WING v. LEE TIM LOI t/a TIM WAN PAINTING & DECORATION WORKS

P.I. 600 of 1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

ACTION NO. 600 OF 1997

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J U D G M E N T

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1. The Plaintiff is a 42 year old painter and decorator. He has been engaged in this trade since shortly after he left school. He followed his father into the same trade.

2. On or about 11th October 1995, now almost four years ago, he started to work for the Defendant following the introduction by a work friend or colleague, Mr. Lau Chor. The initial work was the external painting of a house in Hong Lok Yuen, Tai Po. The house in question is shown in some photographs taken almost two years after the accident.

3. Three men were engaged on the work on the day of the accident on the 13th October 1995 - Mr. Lau, a Mr. Au Bor and the Plaintiff himself. The Defendant had himself been directly involved in the work a day or so earlier when it commenced. He was not however on site on the 13th October 1995.

4. The equipment available to the workmen was very limited. Apart from the painting utensils there were a 14 or 15 foot long stepladder; a few shorter ladders to reach modest heights up to perhaps first floor level, or if placed on a balcony or projection to reach a higher level, and some rope, string or lashings. The house was on three levels; ground, first and second floors. It had drainage pipes in the usual vertical positions and ledges on which to house externally placed air-conditioning units. For a house of this size one would have expected bamboo scaffolding, or, at the very least, mobile tower scaffolding. There was none of these. How then was the work to be done at a higher level? The simple answer on the evidence was that the painter, or painters, had to stand on a ladder or stepladder, and by means of a paint roller attached to a 10 feet long bamboo pole, cover the surface up to the eaves of the house. The dangers inherent in such a system hardly need stating.

5. Mr. Lau Chor was in charge of the job. The Plaintiff was the youngest of the three painters. He was to do the higher work leaving the other two to work from the ground level or at most using one of the shorter ladders. There was only one 14-15 feet stepladder. The Plaintiff was using it.

6. The ground was not even - it rarely is on such sites - and he positioned the opened stepladder parallel to the wall, and, as he climbed it, he was side on to the wall of the house with his back to the ledge on which he was to stand in order to be able properly and satisfactorily to paint the vertical drainage pipe which ran close to the air-conditioner ledge.

7. He was criticised for seeking to do the work in this way, it being part of the Defendant's case that he ought to have done this part of the job by using the paint roller on the end of the pole. It does not require much understanding of the technique suggested that this would result in an incomplete and skimpy job. A brush and proximity to the pipe were required to be in a position to paint the back of the pipe. Also, it was to be painted in a colour different from that of the walls of the house. Using a roller in the manner suggested was highly likely to smear the paint from the pipe on to the walls. In two respects therefore the system suggested was inappropriate for a professional painting job. The Plaintiff had to do the job employing the limited means and equipment available. I am satisfied he did his best in the circumstances and the method he adopted was the most intelligent one in the circumstances.

8. He met with his accident as he tried to leave the ledge by means of the stepladder. He handed down the bamboo pole, roller, and can of yellow paint to Mr. Lau. He stepped on the ladder and his right foot slipped. The stepladder fell away from him as he tried to hold on to it, and he fell to the ground fracturing both ankles, despite trying to hold on to the small branch of a tree.

9. In answer to what was alleged against him, he said that there was no even ground on which he could position the ladder, and that, as best he could recall, the stepladder was too short to be able to rest against the ledge so as to attain some stability and support. I am satisfied that, given his experience, he would have used the ladder in this fashion and to that end, had it been long enough to reach the ledge.

10. He did not position the ladder on the other side of the ledge so as to be nearer the vertical pipe because there was a flower bed there, and, inferentially the soft ground would not have afforded the necessary stability. There was not in any case, sufficient space.

11. The final allegation which scarcely merits consideration, was that he deliberately threw himself off the ladder or ledge so as to claim compensation. I have no difficulty in rejecting that contention.

12. One matter that needed exploring so as to do justice to the case of the Defendant who was unrepresented, was the footing of the ladder. Given that Mr. Lau and Mr. Au were doing other jobs there was no one available to foot the ladder for the Plaintiff. When the Plaintiff prepared to descend he handed materials down to Mr. Lau, before starting his descent. Mr. Lau, the man in charge of the work, did not see fit to foot the ladder or aid the Plaintiff in that regard. He himself said that there was no one to foot the ladder. Even if he had tried to do so I doubt that in all those circumstances, he could have provided any practical assistance to the Plaintiff. Descent was tricky enough and if his foot slipped on some material or substance, footing the ladder would not have prevented anything - it might have prevented the ladder falling but not the Plaintiff. Mr. Lau was an experienced worker as well as being the man in charge of the job. He did not devise any system which may have provided a greater degree of safety for the Plaintiff.

13. The Defendant himself gave evidence and in one answer revealed the key to the absence of equipment and safety provision. It takes time to erect scaffolding and this contract was to be a quick job. Although he agreed that scaffolding and/or extending ladders would be much better for the job it was large-scale equipment and not cost-effective for the job. If the Plaintiff had asked for an extending ladder or tower scaffold Mr. Lee said that he would have told him not to do the job.

14. It is clear that the Plaintiff and others were expected to get on with the work as quickly as possible with inadequate equipment. There was no safe system of work. The Plaintiff was left substantially to his own devices in order to carry out that work. The method of painting the higher level of the building was somewhat primitive and the idea of wielding a paint roller on the end of a 10 feet long bamboo pole from the 13th or 14th step of the ladder is so devoid of any protection for the person doing such work that it is transparently hazardous. There are clear breaches of statutory duty but they add nothing to the common law allegations and negligence.

15. Although I have carefully considered whether the Plaintiff contributed to any extent to his accident I have concluded that he did not. The ladder could not be lashed in the position from which he had to work. There was no one available to foot the ladder and in any event such footing would not have prevented the accident. Mr. Lau saw no need to foot it even though he was there receiving certain materials handed down by the Plaintiff.

16. In order that the Defendant should not feel that any evidence available to him had been ignored I viewed a video-film of the Plaintiff carrying out certain work since the accident. I am satisfied that there was nothing disclosed by it which was relevant to the issue of liability.

17. The Defendant was wholly to blame for this fall. There will be judgment for the Plaintiff with costs with damages to be assessed.