Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Wong Lok Keung v Discovery Bay Transportation Services Ltd

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date14 November 2005
Subject MatterCivil Appeal
Judgement NumberCACV238/2005
CourtCourt of Appeal (Hong Kong)
CACV000238/2005 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)

_______________________

BETWEEN

　

wong lok keung

 Plaintiff/Appellant
　

and

 　
　

discovery bay transportation services limited

 Defendant/Respondent

______________________

Before: Hon Woo VP, Hon Yeung JA, Hon Barma J in Court

Date of Hearing: 3 November 2005

Date of Judgment: 14 November 2005

______________________

J U D G M E N T

______________________

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...

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