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CACV 145/2010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 145 OF 2010
(ON APPEAL FROM HCPI 1053 OF 2006)
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BETWEEN
| CHUNG YUEN YEE, the Administratrix of the estate of Lai Wing Kee, deceased |
Plaintiff
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| and |
| SAM WOO BORE PILE FOUNDATION LIMITED |
1st Defendant
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SAM WOO ENGINEERING
EQUIPMENT LIMITED |
2nd Defendant
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| SAM WOO CONSTRUCTION LIMITED |
3rd Defendant
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| SAM WOO SHIP BUILDING LIMITED |
4th Defendant
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________________________
Before : Hon Cheung CJHC, Tang VP and Cheung JA in Court
Date of Hearing : 8 July 2011
Date of Judgment : 22 July 2011
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J U D G M E N T
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Hon Cheung CJHC :
1. I agree with the judgments of Tang VP and Cheung JA.
Hon Tang VP：
2. I have had the advantage of reading the judgment of Cheung JA in draft. I agree with it. I wish, however, to add a few words on the finding of contributory negligence against the deceased.
3. It is clear from the evidence that the deceased and Mr. Lam, the driver crane operator, were expected to carry out the lifting of the forklift truck. Mr. Lam had to man the lorry so essentially the deceased was left on his own.
4. The expert report of IR Dr Lam Siu Shu Eddie, stated at para. 5.3C that the trade practice was that two workers:
‘ … would be around at the two sides of the Forklift Truck to balance/control the Horizontal Force ….’
5. This is accepted and is no more than common sense.
6. Dr. Lam went on to say in the same paragraph:
‘ … With only one worker, i.e. the deceased, at the material time, the Deceased had to stand in front of one side of the Forklift Truck, i.e. at the space between the Forklift Truck and the side-wall in order to balance/control the Horizontal Force …’
7. As IR Dr. Jonathan C. Y. Chung, who conducted an experiment on 10 June 2005 to simulate the lifting of the forklift truck, said swinging or turning movement was to be expected when lifting the forklift truck. See paras. 5.3.3 to 5.3.5 of his expert report dated 2 February 2008.
8. Mr. Coleman sought to rely on what Dr. Lam said in para. 5.2(d) of his report:
‘ Mr. Lam indicates that the Accident occurred when the Forklift Truck was lifted to about 2 to 3 inches above the sideboard of the lorry (Mr. Lam’s 1st declaration 3:18). Therefore, it is likely that any “swinging or turning movement” was minimal and state of equilibrium was maintained.’
9. However, Mr. Lam’s oral evidence (transcript pages 16-17) was that the accident occurred when he had lifted the forklift truck by about 5 feet. Also whether ‘ “any swinging or turning movement” was minimal and state of equilibrium was maintained’ must depend on Mr Lam’s skill. The evidence was that Mr. Lam had no relevant experience.
10. It is clear that the deceased was required to carry out a hazardous task on his own (when more than one person was required), without proper supervision, and with inappropriate and defective chains. A situation envisaged by Goddard LJ in Hutchinson v London & North Eastern Railway Co [1942] 1 KB 481 when he said :
‘ … It is only too common to find in cases where the plaintiff alleges that a defendant employer has been guilty of breach of a statutory duty, that a plea of contributory negligence has been set up. In such a case I always directed myself to be exceedingly chary of finding contributory negligence where the contributory negligence alleged was the very thing which the statutory duty of the employer was designed to prevent. The real incentive for the observance by employers of their statutory duties … is not their liability to substantial fines, but the possibility of heavy claims for damages. Such legislation would be nugatory if, in every case, employers could disregard the statute, and allege that, although they did not provide a look-out or a guard or a fence, as the case might be, nevertheless the plaintiff could see the danger and, therefore, ought to have ceased working, which in many cases might mean dismissal, or to have taken some extra precaution which was not taken.’ at p.488.
11. In a case involving hazardous work and where the employers provided no supervision, inappropriate equipment, indeed defective equipment, and an inadequate work force, I believe the facts will have to be very unusual to justify a finding of contributory negligence. This is not such a case. Contributory negligence against a workman is more appropriately found in cases where a worker might have worked safely, but did not do so for reasons of his own. It should rarely be found in a case where a workman was put in a situation where he had to work unsafely or risk the possible disapproval of his employer.
Hon Cheung JA :
The proceedings below
12. On 27 July 2004, Mr. Lai Wing Kee (‘the deceased’) was killed in an industrial accident. The plaintiff who is the administratrix of the estate of the deceased sued the four defendants for damages arising from his death. Yam J found against the defendants and held them responsible for damages in the following proportion ：
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1st defendant
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10%
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2nd defendant
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10%
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3rd defendant
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20%
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4th defendant
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60%
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13. The Judge also found that the deceased was responsible for 20% contributory negligence.
14. The parties agreed that the damages were $2,680,000 which were reduced to $2,064,000 because of the plaintiff’s contributory negligence.
15. The 1st, 3rd and 4th defendants appeal against the finding of liability and apportionment. The 2nd defendant which has been separately represented because of insurance interest, accepted the judgment. The plaintiff cross-appeals on the issue of contributory negligence.
Facts
16. The defendants are members of a same group of companies. They shared an office in Mong Kok.
17. The deceased was employed by the 2nd defendant as an employee. However, the 1st defendant had for many years from April 1994 up to the day of the accident paid for his wages and contribution to the Mandatory Provident Fund (‘MPF’). According to Mr. Wan (‘Wan’), an employee of the 4th defendant, the deceased had been working at the 4th defendant’s premises at 36-37 Cha Kwo Ling Road for about three months before the accident. The 2nd defendant’s premises were situated next door at 35 Cha Kwo Ling Road. The 4th defendant started to remove its operation to 35 Cha Kwo Ling about a month before the accident. It was still in the process of removal when the accident...
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