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Cheung Hei Kwong v Kwong Key Construction & Engineering Ltd

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date13 March 2003
Subject MatterPersonal Injuries Action
Judgement NumberHCPI1260/1999
CourtHigh Court (Hong Kong)
HCPI001260/1999 CHEUNG HEI KWONG v. KWONG KEY CONSTRUCTION & ENGINEERING LTD

HCPI001260/1999

HCPI 1260/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1260 OF 1999

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BETWEEN
CHEUNG HEI KWONG Plaintiff
AND
KWONG KEY CONSTRUCTION & ENGINEERING LIMITED Defendant

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Coram: Hon Nguyen J in Court

Dates of Hearing: 15 - 17 January 2003

Date of Judgment: 13 March 2003

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J U D G M E N T

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The plaintiff's claim

1. The plaintiff's claim is for damages for injuries sustained by him on 25 November 1996 when he was working at a site known as Land Lot no.1779 situated at Cheung Chau Island. The plaintiff was engaged in conveying bags of plaster with each carrying an approximate weight of 50 kilogrammes on the ground level at the site. He tripped over a piece of loose jute rope which was lying on the surface of the said ground and he lost his balance and fell, sustaining the following injuries :

(a) fracture of left ankle; and

(b) abrasions over abdomen and chest wall.

2. The defendant admitted that the plaintiff met with the accident and sustained the injuries at the time and place indicated but the defendant averred that the accident was caused solely or contributed to by the negligence of the plaintiff.

3. The plaintiff's claim was that he was employed by the defendant as a plaster remover or alternatively he was employed by one Ngan Yiu Ming who was a sub-contractor at the construction site. His claim against the defendant was based mainly on a breach of the Construction Sites (Safety) Regulations, Cap.59 ("the Regulations") and in particular Regulation 38A which provides that the contractor responsible for any construction site shall ensure that every place of work on the site is, so far as is reasonably practicable, made and kept safe for any person working there. The plaintiff also alleges a breach of Regulation 52 which provides that the contractor responsible for a construction site shall ensure that all places on the site used as passageways are kept clear of any loose materials which are not required for immediate use.

The plaintiff's evidence

4. The plaintiff gave evidence that on the day in question, he was working at the site in question. The project was to build 26 villas, each of which was three to four storeys high. As there were no roads on Cheung Chau Island, the cement had to be shipped to the Island. The bags of cement were taken off the ship by a crane and then transported by a dilapidated lorry with an open compartment at the back to a spot which was some distance from the ship and which was about 50 feet from the site where the villas were being built. At that spot, the bags of cement were taken off the lorry by a crane which was hooked onto the eight leather straps, each 4 inches wide, of the sack which contained 50 bags of cement. Each bag weighed 50 kilogrammes. When the sack was removed from the lorry, it was placed on the roadside. Each sack measured 2 by 2 metres while each bag measured 40 by 60 centimetres. Six or seven sacks were put together. Each strap of the sack was about 2 metres in length and the 50 bags of each sack were stacked up, one on top of another, to a height of 1 metre.

5. The plaintiff had been working since November 1985 until the date of the accident as a plaster remover at the rate of $700 per day. He said he worked 30 days in a month. He had been working at that particular site since April 1996 and he was familiar with the site at the time of the accident. He was aware that the loose straps were lying around and he said that everybody was extremely careful because they were aware of the danger. He agreed that before he picked up a bag, if there was a strap in his way, he would move the strap away. On the day in question, he had to bend down a bit to pick up a bag. This particular bag was inside the sack but was at ground level. He lifted up the bag and put it on his shoulder. When he bent down, he could see loose straps on the ground. After he placed the bag on his shoulder, his right foot then stretched out and that foot was on the ground when his left foot was about to move. It then tripped on a strap which was on the ground and in contact with the ground. He said the earth was very loose at that time. There was a down slope a bit further from the spot where he was. He then lost his footing and fell and the cement bag fell and landed on his abdomen. He did not agree with the suggestion that he fell because he lost his footing and slipped and that his fall had nothing to do with the strap.

6. When the plaintiff was cross-examined as to how the accident happened, he said that while his right foot was off the ground and when his left foot was stepping onto straps lying on the ground, that caused him to lose his balance. He confirmed that his left foot stepped onto straps and the canvass. He confirmed that the sole of his left shoe was on top of the strap. He said his left foot came into contact with the strap when he was about to lift his left foot and the strap slipped into his ankle. He said that they had a break for afternoon tea and at 3:30 p.m. they resumed their work. When the accident happened at 4:15 p.m., he had made about seven to eight trips carrying these bags of cement.

Finding on liability

7. It was properly agreed by the defence that the site in question was a "construction site" within the meaning of the Construction Sites (Safety) Regulations, Cap.59. Having considered the evidence of the plaintiff, I am satisfied on a balance of probabilities that on the day in question, the plaintiff was injured as a result of an accident at the site and the accident was caused by the plaintiff's loss of balance due to his left foot coming into contact with a loose leather strap lying on the ground. That leather strap was one of numerous straps lying about on the ground in the vicinity where the plaintiff was working. Because of the presence of the straps on the ground, I find that the defendant, as the main contractor responsible for that site, failed to ensure that the place of work was, so far as was reasonably practicable, made and kept safe for any person working there. This was a breach of Regulation 38A of the Regulations mentioned above. I do not find that it was because of the plaintiff's carelessness or total lack of attention which caused him to lose his balance and have a fall. Even if there had been a slight departure from paying full attention to what he was doing, I find that that did not absolve the defendant from liability as the contractor responsible for the site. Lord Oaksey said in General Cleaning Contractors Ltd v. Christmas (1953) AC 180 at 189 :

"It is ... well known to employers ... that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve."

I find that the defendant failed to have in place any measures which would have ensured that the ground was cleared of these leather straps which by themselves could have been a source of danger to the people working thereat.

Contributory negligence

8. Did the plaintiff's conduct in not pushing the straps aside before walking or not paying complete attention to what he was doing amount to contributory negligence? Sellers LJ in Quintas v. National Smelting Company (1961) 1 AER 630, at 636E said :

"It has often been held that there is a high responsibility on a defendant who fails to comply with his statutory duty which is absolute and has penal sanctions. A workman is not to be judged so severely."

In Flower v. Ebbw Vale Steel, Iron and Coal Co. Ltd [1936] 1 AC 206, Lawrence J said :

"The tribunal of fact has to take into account all the circumstances of work in a factory, and that it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence."

In Casewell v. Powell Duffryn Associated Collieries Ltd [1939] 3 AER 722, Lord Atkin at page 731 agreed with the statement of Lawrence J quoted above when he said :

"I am of opinion that the care to be expected of the plaintiff in the circumstances will vary with the circumstances; and that a different degree of care may well be expected from a workman in a factory or mine from that which might be taken by an ordinary man not exposed continually to the noise, strain and manifold risks of factory or mine."

In Ryan v. Manbre Sugars Ltd [1970] 114, Solicitors Journal 492, the Court of Appeal in England held that the fact that the plaintiff knew of the danger and of the need for caution did not prove that he had been guilty of contributory negligence and the fact that the plaintiff did not put his foot right over the step was inadvertence but not contributory negligence. In Hopwood v. Rolls Royce Ltd (1947) 176 LT 514, the Court of Appeal in England held that contributory negligence did not mean mere error of judgment or a degree of inattention which a workman in a factory may in the ordinary course of his work be expected to show in circumstances that are familiar to him. I, therefore, find that in the circumstances of this case, the plaintiff should not be held guilty of any contributory negligence.

The plaintiff's injuries

9. On the day of the accident, the plaintiff was examined by Doctor Karen Fan at the Queen Mary Hospital and her findings were : an inversion injury of left ankle; the left ankle was grossly swollen and tender; X-ray showed a fracture of distal fibula. In a report dated 22...

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