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Yuen Yiu Kwong v Chan Kwok Chuen And Another

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date20 December 2002
Year2002
Judgement NumberHCPI1356/1999
Subject MatterPersonal Injuries Action
CourtHigh Court (Hong Kong)
HCPI001356/1999 YUEN YIU KWONG v. CHAN KWOK CHUEN AND ANOTHER

HCPI001356/1999

HCPI 1356/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1356 OF 1999

____________

BETWEEN
YUEN YIU KWONG Plaintiff
AND
CHAN KWOK CHUEN, WONG WAI KEUNG and WU WAI HO trading as POTLAI ENGINEERING COMPANY 1st Defendant
PATWIN ENGINEERING COMPANY LIMITED 2nd Defendant

____________

Coram: Mr Recorder Edward Chan S.C. in Court

Dates of Hearing: 24-27 September 2002

Date of Judgment: 20 December 2002

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J U D G M E N T

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1. The Plaintiff was born on 15 October 1958. He first started his career as an air conditioning apprentice and he became an air conditioning technician. Later on, in or about the early 1980s he also learned the trade of an electrician. Since he learned his trade as electrician, he worked as an electrician until he joined the 1st Defendant in March 1996. Apparently the wage for an electrician is generally slightly higher than that of an air conditioning technician. The difference is about $40 to $50 per day. On top of that, it is physically more demanding to work as an air conditioning technician. Hence, there is little surprise that since the Plaintiff learned his trade as electrician he opted to work as an electrician rather than an air conditioning technician.

2. However, like many other jobs associated with the construction industry, the supply of work as electrician or air conditioning worker may not be very stable. Hence, after completing the work at one site, there may be gaps of days during which the Plaintiff could not find any work and hence would not be able to earn any wages. Probably because of the security of the job, the Plaintiff had decided to join the 1st Defendant in March 1996 working as an air conditioning technician. He was initially paid $500 per day. However, because of the Plaintiff's skill and ability to read plans, the Plaintiff was soon asked to head a small group of air conditioning workers and in consequence of which he was paid an additional sum of $40 per day. It would appear that the 1st Defendant was able to supply the Plaintiff constant work until the Plaintiff's resignation in 1997 in circumstances set out below. In fact during the time when he was employed by the 1st Defendant, the Plaintiff would often be asked to do overtime work. The extra income from overtime work would obviously depend on the number of hours of overtime work performed. Suffice is to say that in most instances, the Plaintiff was given the opportunity of earning an average $135 per day from overtime work.

3. In 1997, the 1st Defendant was a sub-contractor of the 2nd Defendant in relation to some air conditioning work at the site of the Convention Centre in Wanchai. There is no real dispute that the 2nd Defendant was the main contractor of the site. It is common knowledge that the work had to be ready for the Convention Centre to be used for the change of sovereignty ceremony on 1 July 1997.

4. On 8 March 1997, the Plaintiff was engaged in the installation of some air conditioning pipe work on the 7th floor of the site. The work would involve the erection of certain frames for the installation of air condition pipes. Those frames were basically made of one horizontal bar being welded onto 2 parallel vertical metal poles. The horizontal bar would act as the support of the air conditioning pipes. In order to reach the height of the horizontal bar, it would be necessary for the worker to stand on a working platform of about 2 meter high. There is no dispute that a working platform was made up of a metal framework of about 2 meters high, 2.5 meters long and 1.5 meters wide. On top of this metal framework there would be placed 2 pieces of wood in a lengthwise direction. These pieces of wood were called the "backbones". The 1st Defendant would suggest that in order to ensure that it would be safe, there should be 3 pieces of backbones for the platform. On top of the backbones there would be placed a wooden board which would form the floor of the platform for the worker to stand on to do the work. Of course there is nothing to prevent the wooden board to be replaced by a metal sheet.

5. There was no dispute between the parties that the 1st and 2nd Defendants did not supply to their workers any work platform as such. When the work concerned would require the use of platform, the workers would have to erect the platform themselves. Although there was some vague suggestion that the 2nd Defendant would provide new and suitable material for the building of the platform, on the totality of the evidence before me, I find that in fact the workers were not expected to use any new material to erect the platform. The practice had always been that the workers were expected to locate some used building materials, such as boards and planks lying around the building site to make their own working platform.

6. The Plaintiff agreed that he was the head of a small team working at the site. There is really no dispute that the size of the team would vary depending on the work involved. Sometimes, the team could consist of 6 persons, and sometimes it could be as few as 2. According to the Plaintiff, on 8 March 1997, he was merely working together with one other worker, Mr Lai Sun. At about 2:00 to 3:00 p.m. on that day, he was engaged in the work of erection of the metal frames for the air conditioning pipes on the 7th floor of the site. By that time, the parallel vertical metal poles had already been erected onto the floor, and he was trying to measure the distance between the parts of the 2 poles at the level of the horizontal bar so that he could find out the length of the metal bar that he would have to cut out to be welded onto the poles. In order to do so he would have to get onto a work platform. He said that when he got onto the platform, he put his measuring tape against one of the poles and he then started to stretch the tape to the other pole. As he was doing so one of the backbones broke and the board he was standing on tilted and he fell down from the platform hitting against the crossbar of the framework of the platform as he landed on to the floor.

7. According to the Plaintiff, the platform was built by Mr Lai Sun. However on cross examination, he also agreed that he helped Lai Sun to look for the material to build the platform. There were 2 backbones for this platform. They were about 2.75 meters long, 0.1 meter wide and 0.05 meters thick. The piece of board which formed the floor of the platform was about 2.25 meters long, 0.5 meter wide and 0.02 meters thick. The board was just resting on the backbones without anything to affix the board and the backbones together.

8. The Plaintiff's evidence was that after the fall, he found out that the backbone that had broken was in fact made up of 2 short wooden beams attached together by a piece of wood nailed to the top of the 2 short beams at the joint. The Plaintiff would agree that such defects in the backbone would be easily seen if he had looked at the backbone. Of course, if the platform was already erected the 2 backbones would be partially covered by the board on top and one may not be able to see the joint in the backbone without removing the board. Although in cross examination the Plaintiff would accept that he helped Lai Sun to look for the material to build the platform, he would not agree that the defective backbone was collected by him and Lai Sun together.

9. On the part of the Defence, only Mr Chan of the 1st Defendant gave evidence in relation to the issue of liability. Mr Chan did not actually witness the accident. He came to know of the accident on the date of the accident but only towards the end of the day. On that day, he did not come up to the scene of the accident to look at the place. He did however come to the scene of the accident the next day and he saw and had spoken to Mr Lai Sun. His account of how the accident took place was based on what he was told by Mr Lai Sun. As to what he in fact saw, he said that on the next day, he only saw the broken beam near the frame of the platform. He saw some boards around but they were not close to the frame of the platform. The beam was about 7 feet long, 2 inches thick and 4 inches wide, and it was broken into 2 parts in the middle. He understood that the beam was the piece of backbone that broke and caused the accident. He said that the beam was not joined up by 2 pieces of beams as suggested by the Plaintiff. According to him, if the beam was joined up by 2 beams, then he would expect the edges of the 2 parts to be rather smooth. As it was, he found that the broken edges of the 2 parts were irregular, thus suggesting to him that it should be the case that the beam was broken due to heavy impact or having weight being applied to the weak point of the beam. In his view, the beam must have been subject to some heavy impact, thus causing some inherent weakness in it before the same was put onto the frame of the platform. He said that there should be some telltales of such weakness and he would expect that there would be cracks on the beam. He would expect an experienced worker like the Plaintiff to be able to discover this because an experienced worker should check the beam before using it for the platform.

10. Mr Chan also disagreed that at the time of the accident, the Plaintiff was trying to measure the distance between the 2 parallel vertical poles. According to him, since the poles were vertical, the distance between the 2 poles at the top part should be the same as the bottom part. Hence, it would only be necessary to measure the distance of the middle part. Even if there should be some discrepancies in the...

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