Chow Shek Ping v Lai Shing Construction Engineering Ltd And Others

CourtDistrict Court (Hong Kong)
Judgment Date01 June 2017
Judgement NumberDCPI1724/2016
Subject MatterPersonal Injuries Action
DCPI1724/2016 CHOW SHEK PING v. LAI SHING CONSTRUCTION ENGINEERING LTD AND OTHERS

DCPI1724/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1724 OF 2016

-------------------------------------

BETWEEN
CHOW SHEK PING Plaintiff
and
LAI SHING CONSTRUCTION ENGINEERING LIMITED 1st Defendant
GLORY SKY CONSTRUCTION LIMITED 2nd Defendant
CHEUNG KEE FUNG CHEUNG CONSTRUCTION COMPANY LIMITED 3rd Defendant

-------------------------------------

Before: His Honour Judge MK Liu in Court
Dates of Hearing: 23-24 & 26 May 2017
Date of Judgment: 1 June 2017

------------------

JUDGMENT

------------------

1. The plaintiff injured in an accident (“the Accident”) occurred at the stairwell between the 5th and the 6th floor of the building at 12-14 Hung Kwong Street (“the Building”), To Kwa Wan, Kowloon, Hong Kong on 20 September 2012.

2. The plaintiff sues the defendants for damages for personal injuries sustained as a result of the Accident. At the time of the Accident, the 3rd defendant was the main contractor of the construction works at the Building, the 2nd defendant was the sub-contractor of the 3rd defendant, and the 1st defendant was the sub-contractor of the 2nd defendant.

The plaintiff’s case

3. The plaintiff says that:-

(a) He was employed by the 1st defendant as a construction site worker at the Building. On 20 September 2012, he was assigned by one Lai Kwok Lun (“Lai”) of the 1st defendant to carry out plastering of the ceiling (“the Task”) at the stairwell between the 5th and 6th floors of the Site (“the Location”).

(b) In order to perform the Task, he had to stand on a platform (“the Platform”) provided by the defendants.

(c) The Platform consisted of one piece of spring board of approximately 7 to 8 inches wide and 6 to 7 feet long (“the Board”). One end of the Board was supported by a wooden ladder on the stairwell, and the other end was placed on top of a step of the ascending staircase. The Platform was approximately 1.5 meters above the floor of the stairwell.

(d) The plaintiff was carrying out the Task by himself. The 1st defendant did not assign another worker to assist him.

(e) At that time, the plaintiff was wearing a safety helmet which was strapped on properly, holding a mortar board and a trowel, and was wearing a pair of safety shoes with rubber soles, but the defendants did not provide any safety belt.

(f) While carrying out the Task, the plaintiff lost his balance. He fell off the Platform and landed on the floor of the stairwell. The Platform collapsed immediately after the fall of the plaintiff.

4. For ease of reference, the plaintiff’s version of the Accident is called “the Platform Version” in this judgment.

5. The plaintiff claims that the Accident was caused by the negligence, breach of contract of employment, breach of common duty of care as occupier of the Building, breach of the statutory duty under the Factories and Industrial Undertakings Ordinance, and/or breach of the statutory duty under the Occupational Safety and Health Ordinance.

6. As to quantum, the plaintiff claims the following:-

(a) PSLA – HK$250,000

(b) Pre-trial loss of earnings – HK$928,305

(c) Loss of earning capacity – HK$60,000

(d) Special Damages – HK$14,470

7. The plaintiff has received HK$552,000 under the Employees’ Compensation Ordinance (“the ECC Award”) in DCEC 1762/2014. The plaintiff agrees to give credit to the ECC Award.

The defendants’ case

8. The defendants say that the plaintiff was not employed by the 1st defendant but by a Law Yuk Wah (“Law”). The Accident took place when the plaintiff was descending a flight of stairs at the Location and was carrying materials for the plastering work, the plaintiff missed a step and fell down. The Accident was solely caused by the carelessness of the plaintiff. The defendants’ version of the Accident is called “the Non-Platform Version” in this judgment.

9. Even if liability is established, the defendants say that there should be very substantial contributory negligence.

10. As to quantum, the defendants’ position is as follows:-

(a) PSLA – not more than HK$100,000

(b) Pre-trial loss of earning – should be HK$118,998

(c) Loss of earning capacity – nil

(d) Special damages – the figure claimed by the plaintiff, ie HK$14,470, is accepted

The evidence

11. The plaintiff has filed a witness statement made by him and has given evidence at trial. I refuse to accept the plaintiff’s evidence as per his witness statement and his oral evidence given at trial, and I do so for the reasons set out in paragraphs 20 to 31 below.

12. The defendants have filed 2 witness statements:-

(a) Witness Statement of Lai, a director of the 1st defendant; and

(b) Witness Statement of Ngai Si Leung (“Ngai”), a director of the 2nd defendant.

13. Just a few days before the commencement of the trial, the defendants made the following 2 ex parte applications (“the 2 ex parte applications”):-

(a) an ex parte application made on 15 May 2017 for a writ of subpoena ad testificandum to compel Ngai to attend the trial to give evidence;

(b) An ex parte application made on 22 May 2017 for a writ of subpoena ad testificandum & duces tecum to compel Lai to attend the trial to give evidence and to produce the original of a provisional agreement dated 27 April 2012 (but signed on 24 April 2012) between the 1st defendant and Law in relation to contract no B3/BD/2010 (“the Provisional Agreement”).

14. I granted the 2 ex parte applications. However, at the trial, Mr Sakhrani informed the court that the defendants elected not to call Lai and Ngai. Accordingly, Lai and Ngai have not given evidence at the trial, and the original of the Provisional Agreement has not been produced.

15. I decline to attach any weight to the statements contained in Lai’s witness statement and in Ngai’s witness statement. Lai and Ngai have not confirmed the truthfulness and correctness of their respective witness statements on oath at trial. They have not been subjected to cross-examination. In these circumstances, it would not be appropriate to give any weight to their witness statements.

16. Similarly, I decline to attach any weight to the Provisional Agreement. What has been produced by the defendants is only a copy of the Provisional Agreement. Mr Sakhrani tells this court that the defendants’ legal representatives have not seen the original. Without having the opportunity to see the original, one does not know whether the copy produced is a true copy of the original. Further, by merely looking at the copy produced by the defendants, one does not know whether the Provisional Agreement is related to the construction works at the Building or not. A further point is that the document is from Lai. When the plaintiff has no opportunity to cross-examine Lai, it would not be fair to the plaintiff if any weight is given to this document.

17. Save and except the copy of the Provisional Agreement mentioned above and a “Site...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT