CHEN QINGQIANG v CHAN YAT HONG trading as HOI YAT CONSTRUCTION ENGINEERING

HCMP 3430/2016
and CACV 90/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3430 OF 2016

(ON AN INTENDED APPEAL FROM HCPI NO 238 OF 2015)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 90 OF 2017

(ON APPEAL FROM HCPI NO 238 OF 2015)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.  This is the 1^st and 2^nd defendants’ application for extension of time to appeal against the judgment of Mr Recorder Houghton SC dated 9 November 2016.  By that judgment, the learned Recorder found no liability on the part of the 1^st and 2^nd third parties to contribute to the damages suffered by the plaintiff and made no order as to costs between the defendants and the third parties.

2.  Pursuant to the directions of Lam VP as per the practice in Wallbanck Brothers Securities (Hong Kong) Limited v Emily Tse & Others, CACV 222/2015, unreported, Reasons for Judgment dated 19 October 2015, the Court held a rolled up hearing on 6 April 2017 to deal with both the time application and the appeal proper should we grant the extension sought.

3.  At the hearing, Mr Victor Gidwani of counsel appeared for the defendants.  The third parties did not appear although the court had already notified them of the hearing by a letter dated 8 March 2017.  After hearing counsel, we gave the defendants leave to appeal out of time upon the defendants’ solicitors undertaking to the court to file the notice of appeal within 5 days from the hearing date.  The third parties had not filed any acknowledgement of service in the proceedings below.  Nor had they taken any step therein.  Pursuant to Order 65, rule 9 of the Rules of the High Court, Cap 4A, the notice of appeal needs not be served on them.  However, just to avoid any unnecessary procedural slip which might otherwise disrupt the appeal proceedings, we ordered that service of the notice of appeal on the third parties be dispensed with.  We indicated that we would hand down our judgment in the appeal in due course, which we now do.  In this judgment, we will also explain why we granted leave to the defendants to appeal out of time.

ACCIDENT

4.  The proceedings below arose out of an accident that took place on 25 January 2013 at at King Yip Building, Nos. 5 – 11 Un Chau Street, Sham Shui Po, Kowloon (“the Building”).

5.  At the material times, the 2^nd defendant was the principal contractor of the renovation works.  The 1^st defendant was a subcontractor of the 2^nd defendant responsible for the external wall renovation works.  The plaintiff was a general worker employed by the 1^st defendant.  The third parties were the registered owners of the 11/F and the Roof, No.9A, Un Chau Street, Sham Shui Po.  A structure was erected on the roof top of the third parties’ property (“the Structure”).  The Structure was made of asbestos tiles laid on top of a steel framework.  It occupied most of the space of the roof of the Building.

6.  On the day of the accident, the plaintiff was working on the roof of the Building.  He mixed cement render at one part of the roof and then delivered the cement, bucket by bucket, to workers at the external wall on the other side of the Building.  Because most of the roof space was occupied by the Structure, the plaintiff had to cross the roof of the Structure in order to deliver the cement from the place where it was mixed to the workers at the external wall. When he was crossing the roof of the Structure, the plaintiff accidentally broke through the roof and fell approximately 2.5 meters to the floor of the Structure.  As a result, he suffered injury to his left foot and ankle and lower back.

PROCEEDINGS BELOW

7.  In June 2015, the plaintiff commenced the action below against the defendants. The defendants denied liability.  They also issued a third party notice dated 25 June 2015 against the third parties seeking an indemnity against the plaintiff’s claims or alternatively a contribution under the Civil Liability (Contribution) Ordinance, Cap 377 (“the Ordinance”).  The third parties did not file any acknowledgment of service to the third party notice.  By an order dated 5 April 2016, leave was given to them to file and serve a defence and to appear at the trial of the action between the plaintiff and the defendants.

8.  The plaintiff’s claims against the defendants were subsequently settled.  By way of a consent order dated 26 July 2016, judgment was entered for the plaintiff against the defendants in the sum of HK$960,000.00 inclusive of interest.

9.  The third parties did not file any defence.  In fact, they did not take part in the proceedings at all.  On 4 October 2016, the defendants’ claims against the third parties came before the learned Recorder for determination.  The 1^st defendant gave evidence.  He also called the plaintiff and another daily worker, Mr Chen Yue Wei (“Chen”), to give evidence.

10.  In the judgment handed down on 9 November 2016, the Recorder first set out the complaints which were deemed to have been admitted by the third parties under Order 16, rule 5 of the Rules of the High Court as follows :

“ (a) Erecting the allegedly illegal structure with roof structure inadequate to withstand the reasonable weight of people having to access thereon;

(b) Erecting the allegedly illegal structure, thereby blocking access to one of the edges of the Site for the Plaintiff to perform his work, other than by climbing onto the roof of the Structure;

(c) Failing to give any or any adequate warnings to the Plaintiff of the danger of working / walking on the roof of the Structure which was made of Asbestos Tiles that could not support weight;

(d) Permitting, allowing and acquiescing the Plaintiff to work and / or to have repeated access and egress to the said asbestos tiled roof;

(e) Exposing the Plaintiff to a risk of injury to which the 1^st and 2^nd Third Parties knew or ought to have known;

(f) Failing to discharge the common duty of care; and

(g) The 1^st and / or 2^nd Third Party, being the occupier of the roof of the Illegal Structure for the purpose of the Occupiers Liability Ordinance, Cap.314, failed to fulfill the common duty of care imposed by section 3 therein.”

11.  The Recorder then summarized the defendants’ case and Mr Gidwani’s submissions on contribution.  He then said :

“ 16. The Third Parties (or perhaps previous owners of the roof dwelling) have blocked the original roof surface by the construction of the roof dwelling, and have done so with a structure that is less robust than the original roof. Doing so has made working on the roof necessarily more difficult, and probably more hazardous. However, alternative means of access from one part of the roof to another could have been arranged, avoiding the roof of the roof dwelling, and, according to the defendant’s pleading, was arranged.

17. I accept that the Third parties gave no warning to the plaintiff as to the danger of walking on the asbestos roof, but, on his own evidence none was necessary and so this cannot be said to have been causative of the accident. Moreover it would be somewhat unusual for an occupier of premises such as these to advise a construction worker such as the plaintiff of the dangers of working in the way that he did in this case. More commonly, in my view, the occupier would expect (and be entitled to expect) the worker to understand the danger inherent in stepping on a roof such as the roof of the roof premises as this plaintiff apparently did understand. The Third Parties owed a duty to the plaintiff, primarily being the common duty of care prescribed by the Occupiers Liability Ordinance, but the Occupiers Liability Ordinance envisages (at section 3(3)(b) persons in the position of the plaintiff being aware of the more obvious dangers inherent in their work.

18. By comparison to the position of the Third Parties, employers and contractors such as the defendants here, have non delegable and relatively onerous obligations as to the safety of their employees and workers. The plaintiff’s pleaded case set out the various breaches of such obligations alleged against the defendants. In my judgment the defendants are both far more blameworthy than the Third Parties, and their breaches considerably more causative of the plaintiff’s injuries.

19. The Third Parties have, in effect, admitted liability, but the question remains as to the extent to which the admitted breaches could be said to have contributed to the damage. Having regard to all of the circumstances I cannot conclude that the Third Parties should be liable to contribute to the plaintiff’s damages award. The roof dwelling seems to constitute an illegal structure, and did represent an obstacle to the type of movement of people on the roof as is sometimes necessary for maintenance or repair work. The roof of the illegal premises was itself unsafe for foot traffic. But the obstacle, and the hazard it contained was an obvious one, and could have been overcome by the defendants. In particular, the unsafe nature of the asbestos roof as a means of access was evident.

20. Having regard to the above factors I do not think it can be said that the defaults of the Third Parties was, factually, causative of the plaintiff’s injuries, and I find no liability on their part to contribute to the damage suffered.”

12.  Finally, the Recorder made no order as to costs between the defendants and the third parties.

LEAVE TO APPEAL OUT OF TIME

13.  Pursuant to Order 59, rule 4(1) of the Rules of the High Court, a notice of appeal against the Recorder’s order should be filed within 28 days from 9 November 2016, that is, 7 December 2016.  The defendants however only filed the notice of appeal one day later on the 8^th.

14.  In considering if an extension of time to appeal should be granted, the court usually take into account :

(1)   the length of the delay;

(2)   the reasons of the delay;

(3)   the prospect of success of the appeal if extension is granted; and

(4)   the prejudice to the respondent if extension is granted.

15.  Here, the delay, namely, one day only, is very short.

16.  The reason for the delay is that after obtaining counsel’s advice, the defendants’ solicitors were only able to confirm instructions with the defendants after expiry of the deadline on 7 December 2016.  It is not entirely clear when counsel’s advice was obtained and when the defendants’ solicitors first started to take instructions from the defendants after obtaining counsel’s advice.  It is however clear that the defendants must have confirmed their instructions to appeal immediately after the expiry of the deadline on the 7^th.  We were prepared to accept that in the overall circumstances the very short delay was excusable.

17.  More importantly, as we will demonstrate in a moment, we took the view that the appeal must succeed and it would be unjust not to exercise our discretion to grant leave to appeal out of time.

18.  Lastly, in the absence of the any evidence from the third parties, we did not see any prejudice that might be caused to them if the defendants’ application were allowed.

19.  For these reasons, we gave the defendants leave to appeal out of time.  We now turn to the appeal proper.

APPEAL PROPER

20.  As rightly pointed out by the Recorder, by their default, the third parties were deemed to have admitted the defendants’ claims under Order 16, rule 5 of the Rules of the High Court as set out above.  However, for the reasons that he gave, the Recorder found in essence that the third parties’ admitted breaches of duties towards the plaintiff were not causative of his injuries.  With the greatest respect, the Recorder plainly erred in making such a finding.

21.  In considering causation, one necessarily starts with the admitted breaches of duties by the third parties towards the plaintiff under the deeming provision in Order 16, rule 5 as set out above.  Crucially, according to those admitted breaches, the third parties had exposed the plaintiff to a risk of injury to which they knew or ought to have known in breach of their common law duty of care including that imposed by section 3 of the Occupiers Liability Ordinance. Their conduct must have caused the plaintiff’s injuries when he walked and fell from the roof of the Structure in the course of performing his work.

22.  The Recorder found that the third parties’ breaches of duty did not cause the plaintiff’s injuries primarily because alternative means of access from one part of the roof of the Building to another could have been arranged, avoiding the roof of the Structure.  He also noted that that was in fact the defendants’ pleaded case.

23.  We digress to point out that it was the plaintiff’s evidence that he had no choice but to cross the roof of the Structure to deliver the cement as there was no alternative route.  He said in paragraph 8 of his witness statement dated 20 November 2015 that the scaffolding outside the external wall of the Building was a single layer scaffolding.  The defendants’ pleaded case was that there was such alternative route via the gangway/platform formed by wooded planks affixed between the two layers of the double layer scaffolding on the external wall of the Building : see paragraph 6.2 of the Defence dated 26 June 2015.  So was Chen’s evidence : see paragraph 10 of his witness statement dated 3 December 2015.  The Recorder was aware of this factual dispute but had not resolved it.

24.  In our view, even assuming that alternative route to avoid the roof of the Structure could have been arranged by the defendants, that does not absolve the third parties from their liability when the Structure, on their own admissions, had exposed the plaintiff to the risk of injury that they knew or ought to have known in breach of their duty of care towards the plaintiff.  As said, their conduct must have contributed to the plaintiff’s injuries.

25.  As to the extent of the third parties’ liability, we take into account the statutory requirement in section 4 of the Ordinance, namely :

“ … the amount of contribution recoverable … shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.”

Having regard to the fact that the defendants had a non-delegable duty towards the plaintiff, we take the view that the defendants are more blameworthy than the third parties in terms of causation. Looking at the matter in the round, we think an apportionment of liability of 75% and 25% as between the defendants and the third parties is just and equitable.

ORDERS

26.  For the above reasons, we allow the appeal, set aside the Recorder’s order and make an order that the 1^st and 2^nd third parties do pay to the 1^st and 2^nd defendants 25% of the judgment sum of HK$960,000 inclusive of interest awarded in favour of the plaintiff by the consent order dated 26 July 2016.  The defendants should have the costs of the third party proceedings accordingly.  We hence order the 1^st and 2^nd third parties to pay the defendants costs of the third party proceedings, to be taxed if not agreed.

27.  Costs of the appeal should follow the event.  We order the 1^st and 2^nd third parties to pay the 1^st and 2^nd defendants costs of the appeal, including the costs of the application for extension of time, to be taxed if not agreed.

Mr Victor Gidwani, instructed by W. H. Chik & Co., for the 1^st and 2^nd Defendants

The 1^st and 2^nd Third Parties, unrepresented, did not appear