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Lee Kwong Fai v Chow Tai Fook Jewellery Co Ltd

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date15 June 1979
Year1979
Judgement NumberDCCJ5296/1978
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ005296/1978 LEE KWONG FAI v. CHOW TAI FOOK JEWELLERY CO LTD

DCCJ005296/1978

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO.: 5296 OF 1978

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LEE KWONG FAI Plaintiff
(Trading as WO HING ENGINEERING CO.)

AND
CHOW TAI FOOK JEWELLERY CO. LTD. Defendant

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Coram: Judge Hooper in court.

Date of Judgment: 15 June 1979

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JUDGMENT

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1. It is common ground that the plaintiff was at all material times an engineering contractor carrying on the business of servicing and maintaining air-conditioning equipment, having its registered address at No. 250 Chuen Tin Street, Ground Floor, Kowloon. it is further common ground that at all material times the defendant was a company incorporated under the Companies Ordinance, Cap. 32 having its registered office at the 31st Floor, American International Assurance Tower, Queen's Road, Hong Kong, and it is also traded under the name and style of Manning Jewellery Company at 625 Nathan Road, Kowloon, and did there and elsewhere in the colony of Hong Kong carry on the business of jewellery retailers and goldsmiths. At all material times the plaintiff was the employer of one Wong Koon Tai (PWI) and as an employer brings this action by virtue of the provisions of Section 25 of the Workmen's Compensation Ordinance Cap. 282.

2. The relevant terms of the section are as follows:-

" Section 25(1) Where the injury in respect of which compensation is payable was caused in circumstances creating a legal liability in some person other than the employer (in this section referred to as the third party) to pay damages to the workman in respect thereof -

(a) ............
(b) the employer by whom compensation is payable ...... shall have a right of action the compensation .......... he is obliged to pay as the result of the accident, and may exercise such right either by joining in an action begun by the workman against the third party or by instituting separate proceedings:
Provided that the amount recoverable under this paragraph shall not exceed the amount of damages, if any, which in the opinion of the Court would have been awarded to the workman but for the provisions of this Ordinance."

3. In order to succeed in this action the plaintiff must prove -

(1) that the injury suffered by his workman Wong Koon Tai (PWI) was caused in circumstances creating a legal liability in the defendants to pay damages to the said workman,

(2) that the plaintiff is obliged to pay the said workman compensation as a result of the accident,

(3) that the amount that the plaintiff is claiming does not exceed the amount of damages, if any, which in the opinion of the Court would have been awarded to the workman but for the provisions of the Workmen's Compensation Ordinance.

4. Although all these 3 essential elements of the plaintiff's claim were disputed on the pleadings, it transpired at the trial that pursuant to an agreement between the plaintiff and the defendant the said workman went to the premises of the defendant at 625 Nathan Road, Kowloon to repair faulty air-conditioning equipment situated in the defendant's premises and that while he was working on the air-conditioning equipment he suffered an accident. It was further accepted at the trial that the plaintiff and the workman (PWI) came to an agreement dated the 10th of January 1978, which was approved on behalf of the "Director of Labour Department" on the same date, that the plaintiff would pay to the workman the amount of HK$18571.34 by way of compensation. The agreement was admitted into evidence by consent as an agreed document Exh. P2.

5. Section 17 of the workmen's Compensation Ordinance makes such an agreement which has received the approval of the Commissioner binding and provides also that if the employer fails to pay the agreed sum within 21 days after the date stipulated in the agreement for the payment thereof, the employer shall be liable to pay to the workman a surcharge.

6. In these circumstances there could be no dispute at the trial that the plaintiff was obliged to pay HK$18517.34 as compensation as a result of this accident. Indeed the plaintiff's obligation to pay this sum wasn't disputed at the trial. This second essential element of the plaintiff's claim was also clearly proved on the evidence produced by the plaintiff.

7. The main area of dispute in this case was on the question whether the plaintiff has succeeded in proving the first element that the injury suffered by the workman was caused in circumstances creating a legal liability in the defendants to pay damages to the workman.

8. Mr. Pirie for the plaintiff contended that such liability has arisen both by virtue of the Occupier's Liability Ordinance cap. 314 and under the common Law. He based his claim partly on an alleged breach of the common duty of care provided by section 3 of the Occupier's Liability Ordinance and also breach of the ordinary Duty of Care in negligence actions under the common law. Mr. Chan for the defendants disputed that liability has arisen either under the Ordinance or under the common law and raised the defences of volenti non fit injuria and contributory negligence.

9. My findings in the facts so far as they are relevant to the respective contentions of the plaintiff and the defendants are as follows.

10. The Facts The defendants' premises at 625 Nathan Road, Kowloon consisted of a relatively large shop with display counters. A sketch plan showing the layout of the shop was admitted by consent Exh. P4. At the back of the shop to the left hand side is the accounts office. This is separated from the main showroom by means of a partition part of which consists of clear glass to form a window. This can be seen on the extreme left of the photograph Exh. P6 which was taken in the accounts office. Persons at this window in the accounts office should be able to see most, but not all, parts of the main showroom. There would, however, be limited vision into the accounts office from the main showroom. The defective air-conditioning equipment was situated in the accounts office at the place indicated on the sketch plan Exh. P4 and the photograph Exh. P1. This place is well to the left of the clear glass panel window separating the showroom from the accounts office. It is in fact in the area marked on the sketch behind a show case. The back of the showcase can be seen in photographs Exh. P1 and Exh. P6 and would obstruct the line of vision of somebody in the showroom to something behind the showcase. To the right of the accounts office is a small room through which access is gained to the accounts office. The door to this small room is situated at the very back of the showroom and the switch which operates the air-conditioning equipment is in the small room on the wall to the right of that door. It is marked on the sketch Exh. P4 with a red line. The relative positions of the door and the switch can be clearly seen in photograph Exh. P5 which was taken from inside the small room looking in the direction of the door and the switch. The small room is separated from the accounts office by a partition and the door through which access is gained from the small room to the accounts office is at the end of that partition furthest from the wall separating the small room form the main showroom. It would be impossible for someone standing at the switch in the small room to see the defective air-conditioning equipment in the accounts office through that door, because the three are not in a straight line. That is the geography of the premises so far as it is relevant.

11. The workman arrived at the premises to repair the defective air-conditioning equipment and he was accompanied by a foki. The shop had not at this time opened for business, but was due to do so two days later on the 15th of April. There were 8 to 10 persons working in the shop, some of whom were putting articles into the display cases. The workman indicated his reason for being there and together with his foki was admitted into the premises by a person whose identity is unknown. In order to carry out the repair work on the air-conditioning equipment, it was necessary for the workman to have the electricity serving that equipment switched off. The workman, although he had been to the premises on a previous occasion, did not know where the air-conditioning switch was, but gave instructions to an unidentified person for it to be switch was, but gave instructions to an unidentified person for it to be switched off. He assumed that the person he spoke to was in charge or the electrical equipment. His request was made in normal tones. The workman went into the accounts office to carry out the necessary work. The defective air-conditioning plant was situated above a false ceiling and it was necessary for tiles in the ceiling to be removed to enable the workman to gain access to the air-conditioning plant. It was necessary for the workman to stand on a step ladder and to be assisted by his foki for the purpose of taking the ceiling tiles from the workman and also handing up necessary tools. The position of the step ladder is shown on the plan Exh. P4 by two parallel red lines. Several persons who had been working in the accounts office had to move out and certain chairs had to be moved in order to set up the ladder in this position.

12. When the workman had been working for about 25 minutes and was adjusting the second of two leather driving belts, an unidentified person switched on the air-conditioning equipment, causing the workman's right thumb to be trapped between the belt and the roller and causing it in fact to be amputated.

13. The worker climbed down the ladder exclaiming loudly that somebody...

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