WONG LOK KEUNG v. DISCOVERY BAY TRANSPORTATION SERVICES LTD

CACV 238/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 238 OF 2005

(ON APPEAL FROM dcpi 518 OF 2004)

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 J U D G M E N T

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Hon Yeung JA (giving Judgment of the Court):

Background

1.  Discovery Bay (DB), a low-density residential complex on Lantau Island, has no direct public road connecting Kowloon or Hong Kong Island.

2.  The usual means of public transport for DB residents is the ferry service between DB and Hong Kong Island operated by the defendant – Discovery Bay Transportation Services Limited (DBTS).

3.  Passengers embark and disembark on Hong Kong Island at the Central (DB) Pier (the Pier), which was constructed in 1993 and owned by the Star Ferry Co Ltd.

4.  The Star Ferry Co Ltd granted DBTS a license to use the Pier and the necessary operating equipments.

5.  At the Pier, by the side of the gangway for passengers to embark and disembark, there was a narrow passageway about 44 inches wide. To the left of the passageway as one was facing the gangway, there was a low wall, and to the right was the waterfront along which ferries moored.

6.  In the middle of the passageway near the control panel for the adjustment of the level of the gangway, there was an 18-inch diameter dumbbell-shape steel bitt for the belaying of ropes when ferries moored, leaving a space of 16 inches and 6.5 inches on either side of the bitt.

7.  On the 16-inch side of the bitt near the control panel, there was a one-inch thick metal plate on the floor attached to the bitt. The metal plate was already in existence before DBTS started to use the Pier and there had never been any reported accident relating to the presence of the metal plate.

8.  The plaintiff – Wong Lok Keung started to work at the Pier on 31 July 2001 as an attendant and his duties included the operation of the control panel, assisting in the mooring of ferries, controlling passenger flow, selling tickets and any odd jobs that he was assigned to do.

The Accident

9.  According to the plaintiff, on 4 May 2002 at about 11 a.m., a ferry from DB was about to berth and the departing time for that ferry was scheduled at 11.10 a.m. The plaintiff was standing near the control panel when he saw his colleague pushing a metal trolley towards the gangway and the plaintiff felt obliged to help.

10.  As the plaintiff was going forward towards the gangway along the narrow passageway to help his colleague, he tripped at the edge of the raised metal plate and fell, and he suffered injuries.

The Claim

11.  The plaintiff commenced proceeding in the District Court for personal injury damages against DBTS.

12.  The plaintiff alleged that DBTS was negligent, and had failed to take all reasonable precautions for the safety of its employees at work. The plaintiff further alleged that DBTS had failed to provide and maintain a safe place of work, and had exposed him to the risk of injury.

The Decision

13.  On 13 April 2005, Judge Wong in the District Court dismissed the plaintiff’s claim. The judge held that DBTS was not liable and even if it was, the plaintiff was 50% to blame.

14.  The judge rejected the plaintiff’s evidence that he had complained about the existence of the metal plate. The judge pointed out that the metal plate had been in existence since the Pier was constructed in 1993 and had been stepped on by pier assistants when ferries moored at regular intervals, yet there had never been any reported accident.

15.  The judge found that pier assistants were all aware of the existence of the metal plate.

16.  The judge opined that the situation was similar to the situation in Pickford v Control Data Ltd, an unreported decision of the Court of Appeal in England on 2 May 1984 in which Griffiths LJ made the following observation:

“The position here is that at the stage this accident happened the evidence revealed that one tile on this floor was standing not more than a quarter of an inch proud at one corner, and I am quite unable to bring myself to say that that rendered that floor unsafe. Walking around any building one is likely to encounter places either where the carpet ceases and the floor begins, or through some natural wear on stone, where you will have a difference in level of a quarter of an inch. It is possible, if you are very unfortunate, to catch your foot and stumble on it, but the chances are very remote, and, as a matter of common sense, I am not prepared to hold that such a difference in level renders a floor unsafe. For my part, therefore, on that ground I would not be prepared to hold that there was here a breach of section 29 or that this floor was in such a dangerous condition that it rendered the employer in breach of his common law duty not to expose his employees to unnecessary risk of injury.”

17.  The judge emphasized that the plaintiff had tripped before and should therefore be more careful. He pointed out that the accident, an isolated one, occurred in the middle of the day and that the plaintiff’s eyesight was not blocked.

The Appeal

18.  The plaintiff appealed against the judge’s findings, on both the issue of liability and the issue of contributory negligence.   

19.  Mr Hung, on behalf of the plaintiff argues that the judge should have had more regard to the facts of the case in determining if DBTS had been negligent. In particular, Mr Hung suggests that the judge had failed to take into consideration that people had to act and move quickly at the Pier and the consequences of tripping or losing balance would be extremely serious.

20.  In so far as the judge sought to rely on Pickford v Control Data Ltd (supra), Mr Hung contends that he had failed to distinguish the facts of the cases. Mr Hung suggests that a momentary carelessness and casual inadvertence on the plaintiff’s part should not constitute contributory negligence.

21.  Mr Hung submits that if the judge had properly considered the facts of the case, he should have found DBTS liable for the accident.

22.  In any event, Mr Hung argues that 50% is far too high a percentage to reflect the plaintiff’s contributory negligence, if any.

Discussion

23.  The width of the passageway leading to the gangway was about 44 inches. The bitt at the middle of the passageway had a diameter of 18 inches leaving a space of about 6.5 inches to its right and about 16 inches to its left.

24.  Beyond the 6.5-inch space, there was the waterfront where ferries moored. Although there were wooden bollards lining the side of the waterfront, there was a space between the wooden bollards as wide as 48 to 60 inches through which one could easily fall into the sea.

25.  The raised metal plate was positioned at the 16-inch space to the left of the bitt and the control panel was right in front of it.

26.  It is, therefore, obvious that anyone operating the control panel or in the vicinity would have to walk past the raised metal plate frequently, the passageway being a very narrow one and the other side being the waterfront.

27.  Despite the absence of direct evidence, it is reasonable to infer that any attendant working at the Pier must act and move quickly, particularly during mooring and embarkation and disembarkation of passengers.

28.  The case of Pickford v Control Data Ltd (supra) concerns a large workshop of 50 yards square maintained to a very high state of cleanliness. The floor was composed of 5,500 pieces of two-foot square tiles with laminated surfaces. There was a reporting system whereby deterioration of tiles could be reported so that they could be replaced.

29.  The plaintiff in Pickford’s case (supra) was pushing a trolley in the workshop when her foot “caught the edge of one of the tiles, the top surface of which had begun to come away as a result of the degeneration of the lamination, so that at one corner it was something not more than quarter of an inch proud of the adjacent tiles”.

30.  There was no indication that workers in the workshop had to act and move quickly within a narrow and confined space and the chances of a worker catching his foot and stumbling were said to be very remote. There was no report of any deteriorated tiles and the workshop was not reasonably expected to have any other alternative reporting system.

31.  We are persuaded that the facts in Pickford’s case (supra)are in fact not comparable to those in the present case.

32.  The issue for our consideration is whether DBTS had taken reasonable care to ensure the safety of its employees working at the Pier and whether it had provided and maintained a safe place of work for them. The key notion of “reasonableness” provides the law with a flexible test, capable of being adapted to the varying circumstances of each case.

33.  The absence of any reported incident in the past, much emphasized by the judge and by Mr Simon Leung, counsel for DBTS, speaks of good fortune or perhaps no serious consequence, and is not necessarily a conclusive indication of absence of negligence, let alone a safe place of work.

34.  “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not do” (per Lord Reid in London Graving Dock v Horton [1951] AC 737 at 785).

35.  The reasonable precaution required of a reasonable man will depend on the chance of the accident happening and the gravity of the result of such accident (See Janes v Vauxhall Motors Ltd [1955] 1 Lloyd’s Rep 152). If the result is more serious, greater care should be exercised.

36.  In our view, the presence of a raised metal plate, about an inch in thickness and occupying the major part of a narrow passageway where employees are expected to move about quickly and hastily, speaks of negligence and an unsafe working environment.

37.  The chances of employees catching their feet and stumbling, in such circumstances, cannot be said to be very remote. One must also not ignore that any accident in such circumstances will have dire consequences – falling overboard with the possible result of drowning or being crushed by a mooring or moored ferry.

38.  A reasonable employer must, in the circumstances, realize that there would be a risk of the employees tripping over the raised metal plate with serious consequences and must therefore exercise greater care. DBTS should have taken steps to eliminate such risk.

39.  We are persuaded that the judge was wrong in his conclusion that DBTS had not been negligent. We are of the view that DBTS had failed to take reasonable precautions for the safety of its employees and had failed to provide and maintain a safe place of work for them.

40.  DBTS must be liable for the plaintiff’s injuries and the resulting damages.

Contributory Negligence

41.  The burden of proving contributory negligence rests on DBTS on a balance of probabilities. In its defence, DBTS put forward the following particulars of negligence against the plaintiff, namely:

1.   Failing to ensure his own safety;

2.   Failing to look where he was walking; and

3.   Failing to pay any or any sufficient heed to the presence of the metal plate.

42.  There is no dispute that the plaintiff, having worked at the Pier for about nine months before the mishap took place, must be aware of the presence of the metal plate. In fact he must be concerned about such presence, as according to him, he had actually made a complaint about it. The judge also found that he had tripped over the metal plate before.

43.  However, the knowledge of a danger is not of itself evidence of contributory negligence.

44.  In Helsketh v Liverpool Corp [1940] 4 All E R 429, it was held that “the plaintiff had not been guilty of contributory negligence, for the mere fact that he knew of the existence of the trees without their significance making an impression on his mind was not sufficient to constitute contributory negligence.”

45.  As an attendant at the Pier, the plaintiff had to perform his duties and could not shy from such duties because of the presence of the metal plate.

46.  Also, as an employee, the plaintiff could not, on his own volition, take any step with regard to the existence of the metal plate. He had no choice, but to continue to work in the unsafe condition created by DBTS.

47.  At the time of the accident the plaintiff was trying to assist a colleague. That might not be part of his assigned duties, but he clearly felt obliged to do so. He had to walk past the raised metal plate, as the passageway was very narrow. It was in the haste of the moment that the plaintiff tripped and injured himself.

48.  Mr Simon Leung, counsel for DBTS, fails to specify what the plaintiff did or failed to do to constitute negligence. There is no clear evidence that the plaintiff had, in any way, acted unreasonably.

49.  Mr Leung suggests that the accident speaks for itself, namely that it could not have happened without negligence on the plaintiff’s part.

50.  Mr Hung, relying on Wong Yat Chiu & Another v Chan Kwok Wa & Others [1999] 2 HKLRD 849 and General Cleaning Contractors Ld v Christmas [1953] A.C. 180, suggests that the plaintiff was not liable for any contributory negligence as he was required to work in an unsafe environment brought about by DBTS.

51.  It is fair to point out that the plaintiff was not required to work in an obviously and inherently risky situation such as the absence of hooks for the safety belts to attach in General Cleaning Contractors and the use of canvas slings, which could bring about a risk of injury in Wong Yat Chiu & Another.

52.  The presence of the metal plate one-inch above the floor would not in the normal course of event trip anyone who regularly works in the vicinity and is familiar with the situation. The absence of any reported incident in the previous eight years supports such a view.

53.  The plaintiff did not himself explain in detail, and no one else saw, how he tripped over the metal plate. However, as the judge pointed out, the accident occurred in the middle of the day and the plaintiff’s eyesight was not blocked. He had been working there for more than nine months at the time of the accident.

54.  The plaintiff might have failed to look or look carefully; he might have taken a calculated risk. Whatever the reason, if the plaintiff had indeed exercised due care and attention, he would not have tripped over the metal plate. The fact again speaks for itself. We are persuaded that the plaintiff is liable for contributory negligence.

55.  The judge found the plaintiff and DBTS equally to blame for the accident. Mr Leung urges us not to easily disturb the judge’s findings on the apportionment of liability. He relied on Brown v Thompson [1968] 1 WLR 1003 where Winn LJ repeated the observations of Seller LJ in Quintas v National Smelting Company Ltd [1968] 1 WLR 401 at p 408 and 418 as follows:

“…that an appellate court will not lightly interfere with apportionment made by the trial judge.”

“The problem of apportioning blame where there has been fault on both sides is one that has been familiar in the Admiralty jurisdiction for fifty years. It has long been held to be a matter primarily for the discretion of the trial judge, who finds the facts, and who has the advantage of seeing the participants at first hand and assessing the degrees of their responsibility. It is well settled that, in the absence of any error in principle, an appellate tribunal will interfere with the trial judge’s apportionment only in exceptional cases, and then as a rule only where it can be seen that the trial judge has failed to give effect to some material fact or has failed to take into account some material consideration.”

56.  Mr Leung further relies on the judgment of Sir Thomas Eichelbaum NPJ of the Court of Final Appeal in Wishing Long Hong v Wong Kit Chun (2001) 4 HKCFAR 289 at p. 297,

“…The deceased’s share in the responsibility could be regarded as quite substantial. However, apportionment for contributory negligence is a discretionary exercise, and there are many precedents to the effect that an appellate court is justified in interfering only in exceptional cases, see eg The Macgregor [1943] AC 197. This principle may apply with less vigour where, as here, the apportionment was made on appeal, rather than by a Judge who had the advantage of hearing the witnesses, and thus had the best opportunity for obtaining the feel of the whole case and assessing the degree of responsibility. Nevertheless, this Court should not interfere unless the result is outside the limits reasonably available to the Court below. It will not simply substitute its own discretionary judgment. While 20% may be seen as a conservative assessment, I do not regard it as outside reasonable limits.”

57.  We are firmly of the view that the apportionment of 50% contributory negligence on the part of the plaintiff, in the light of the background of the case is too excessive and outside reasonable limits. 

58.  We are conscious of the limitation to our discretionay power; however, we are of the view that we should interfere with the judge’s apportionment in the present case. We are of the view that a more appropriate percentage is 20%.

Conclusion

59.  In the circumstances, the plaintiff’s appeal must be allowed.

60.  As there is no dispute on the judge’s assessed damages of $383,586.56 and the paid employees’ compensation of $182,479.54, the plaintiff would be entitled to 80% of the assessed damages of $383,586.56 less the employees’ compensation of $182,479.54, namely a sum of $124,389.70.

61.  We set aside the judgment of the judge and in its place order judgment for the plaintiff against DBTS in the sum of $124,389.70 with interests at ½ of the judgment rate from the date of writ to judgment.

62.  We also make an order nisi that the plaintiff is to have the costs, here and below, to be taxed if not agreed; the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.