Ho Hui and Others v. Gammon (Hong Kong) Ltd and Another

HCA002584A/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 2584 OF 1973

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Coram: Leonard J. in Court.

Date of Judgment: 7th February, 1975.

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JUDGMENT

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1. This is an appeal from a decision of Mr. Registrar Barnes delivered in Chambers on the 14th day of November 1974 wherein he refused an application on the part of the first defendant for certain further and better particulars of the statement of claim. The action is one for damages under the Fatal Accidents Ordinance, Cap. 22 and it is common case that the deceased met his death on the 26th February 1973 at about 9.30 a.m. while carrying out plastering and finishing work on the exterior of the eastern face of the Connaught Centre at the level of the 32nd floor. He was then standing on a cradle when either it or a cradle to which it was linked was struck by the ascending counterweight of a cargo hoist. It was jolted violently and tipped forwards so that the deceased was thrown out of it and fell to the ground some 300 feet below. He died instantly. At that time the first defendant was engaged in the construction of the Connaught Centre and that building was then occupied by or under the control of the first defendant. It is common case that at that time the plaintiff was a visitor to the Connaught Centre within the meaning of the Occupiers Liability Ordinance Cap. 314. The cargo hoist and its counterweight were installed, maintained and at all material times operated by the first defendant, its servants or agents.

2. It is alleged in the statement of claim that at the material time the deceased was employed by the first defendant to do the work at which he was engaged at the time of his death. This the first defendant seeks to deny in these proceedings. It is further alleged that the accident was caused by the negligence of the first defendant or alternatively by breach of statutory duty.

3. The particulars of negligence and breach of statutory duty alleged seem to me to fall into two classes, in that some suggest a failure by the first defendant to extend to the deceased that common duty of care which must be extended to all visitors to premises and others perhaps more importantly suggest a failure to extend to the deceased the duty of providing for him in his alleged capacity as a servant what is frequently compendiously referred to as "a safe system of work".

4. The first defendant's first request for particulars is due to the allegation that the deceased was employed by the first defendant. The response to this request was that the particulars claimed was within the knowledge of the first defendant and further that the first defendant was not entitled to the same until after discovery is completed or alternatively that the first defendant is not entitled to the same by reason of being estopped from denying employment. The learned Registrar held as to this respense that there was no merit in the claim that the particulars were within the knowledge of the first defendant or that the first defendant was not entitled to particulars until after discovery. There has been no counter-notice or summons to appeal against this part of the Registrar's decision and no argument has been adduced before me to persuade me that this objection of the plaintiff has merit. The appellant however claims that the Registrar was wrong in holding that the first defendant was not entitled to the particulars by reason of estoppel. The estoppel claimed is one per rem judicatem. In the defence of the first defendant it is pleaded that the plaintiff and dependants of the deceased have already sought and recovered the sum of $45,000 by way of compensation for the death of the deceased under the provisions of the Workmen's Compensation Ordinance Cap. 282 and in her reply to the defence of the first defendant it is claimed that she was the applicant and the first defendant the respondent in Workmen's Compensation Case No. 36 of 1973 in which liability was admitted by the first defendant. Neither the pleadings nor the adjudication in these proceedings was before me nor was either before the learned Registrar. The only information to which I am entitled to have regard is that liability was admitted. Under Section 24 of the Workmen's Compensation Ordinance Cap. 282, the first defendant could be liable in Workmen's Compensation not only to his own employees but also to the employees of contractors employed by him. That being so there was nothing before the learned Registrar and is nothing before me to show that the first defendant is estopped from denying that the deceased was his employee. I must therefore respectfully differ from the learned Registrar when he holds :

"that in the present form of the pleadings it appears that, as between the plaintiff and the first defendant, it has been judicially determined in a final manner that a contract of service existed between the deceased and the first defendant at all times material to this action."

All that has been judicially determined so far as I can see from the papers before me is that the first defendant was liable to the plaintiff under the Workmen's Compensation Ordinance. The first defendant could have been so liable whether or not the deceased was his employee under a contract of service existing between them. I must accordingly allow this request.

5. The learned Registrar in the course of his decision set out in tabular form particulars of negligence already pleaded by the plaintiff, the first defendant's requests for further particulars relating to each of them and the plaintiff's replies thereto. I found this most useful and for ease of reference I include it hereunder :

The learned Registrar held that the first defendant was entitled to the particulars in paragraph 4 of the table. There is no appeal against that finding and no need for me to comment on it. My immediate reactions to the other particulars are as follows : The use of the word "adequately" in Particular 1 suggests that the cradles were secured to the working face inadequately but that they were in some way so secured so that I should have thought this request prima facie reasonable. As to the request for particulars as to the manner in which the cradles should have been secured this is a matter with which I will deal later. I agree with the solicitors for the plaintiff that the particulars requested under Particular 2 are frivolous and I respectfully sympathise with the facetious answer to the request "give particulars of what is alleged to be 'too close'" as "a position not sufficiently far away" and would remark that the facetiousness would appear prompted by the adage "ask a silly question and you will get a silly answer." The other requests appear to me to be reasonable and sufficient particulars do not appear to me to have already been rendered. The same is true of Particulars 6, and 7 but I consider 8 frivolous. Obviously what is meant is in such proximity that the two were likely to collide.

6. Under O. 18 r. 12(1) of the Rules of the Supreme Court every pleading must contain the necessary particulars of any claim and a party may be ordered to supply particulars under O. 18 r. 12(3). It was under this rule that the plaintiff sought the orders in question before Mr. Registrar Barnes and on appeal before me. In argument Mr. Mills-Owens placed particular reliance on the cases of Colfar v. Coggins & Another⁽¹⁾; General Cleaning Contractors Ltd. and Christmas⁽²⁾. In the first of these cases, as in this, the question as to whether the employer had provided a safe system of work arose and Viscount Simon with whom the other Law Lords a read had this to say :

"To raise this issue the statement of claim ought to set out what the proper system of work was and in what relevant respects it was not followed."

Colfar v. Coggins & Another⁽¹⁾ at page 202-3. In General Cleaning Contractors Ltd. and Christmas⁽²⁾ the plaintiff a window cleaner fell because his finger had been injured by a defective window when he was working on the window ...(illegible). The plaintiff had been supplied with safety belts but no hooks to which to attach them were available. It was held that there was no evidence of facts sufficient to establish negligence in failing to attach hooks but that there was negligence in failure to devise a reasonably safe system of work providing for an obvious danger since the employers neither give instructions to ensure that the windows would be tested before cleaning nor provided apparatus such as wadges to prevent windows becoming closed. In the course of his judgment Earl Jowett makes reference to "a further allegation which was not particularised stating that they had failed to take any proper precautions for the safety of their workmen" indicating to my mind that the allegation should have been particularised. Lord Reid in the course of his judgment says :

"A plaintiff who seeks to have condemned as unsafe a system of work which has been generally used for a long time in an important trade undertakes a heavy onus; if he is right it means that all, or practically all, the numerous employers in the trade have been habitually neglecting the duty to their men. The evidence appears to me to be quite inadequate to establish either that it the window sill method is so inherently dangerous that it cannot be made reasonably safe by taking proper precautions, or that the ladder method or the safety belt method are as a general rule reasonably practicable alternative..... If the respondent is to succeed it must, I think, be on the ground that it was the duty of the appellants to devise for the window sill method a proper system of precautions and instruct their servants to follow that system, and that if they had done so this accident would ... probably have been prevented. No such case is made in the pleadings and no attempt was made to prove it at the trial. ... The best that can be said is that the pleadings can perhaps be read so as not to exclude it, and there are a number of bits of evidence which ... lend support of it. I would not think it proper or fair to the appellants to consider this case were it not for the fact that the appellants counsel in effect asked us to ... enlighten employess in the trade as to their duty."

7. This seems to be tantamount to saying that a general plea (that actually put forward in this case) that the employer failed to take any proper precaution for the safety of the plaintiff could be construed, if unparticularised, as a plea that it was the duty of the appellants to devise for the window sill method a proper system of precautions which if followed would probably have prevented the accident. Such a construction, in default of particulars could therefore be highly embarrassing so much so that Lord Reid would not think it proper or fair to consider it.

8. Speaking on the same subject at page 194-5 Lord Tucker indicates that in the case of what is necessarily a hazardous occupation there is no absolute obligation on employers to devise a system which will be free of risk:

"Their only duty is to take reasonable steps to provide a system which will be reasonably safe having regard to the dangers necessarily inherent in the operation ... long-established practice in the trade although not necessarily conclusive, is generally regarded as strong evidence in support of reasonableness ... in these cases the plaintiff must allege and prove specially what is the defect in the system of which he complains. In other words, it is not sufficient that the system adopted was in fact unsafe, he must show something which could reasonably have been done or omitted which would have made the system reasonably safe and that this failure was the cause of the accident."

Lord Oaksey's dictum that :

"it cannot be that, as a matter of law a plaintiff cannot succeed in such a case unless he proves the particular system in which the work can be performed safety"

is prefaced by the remark that what Viscount Simon "was dealing with was the evidence that would go to show that the system adopted was unsafe, that is to say, by proving a possibly safe system". He did not intend as I read him to say that if a plaintiff proposes to prove a safe alternative he need not plead it and I cannot, for myself, see how, in the general run of things, you can prove a particular system in common use for the conduct of an operation which is in itself inherently dangerous is an unsafe system unless you show that there is reasonably available another system which would be more safe. If you intend to show the existence of that other safer system you must surely plead it unless it is so obvious that the other side does not need to be forewarned of it - as for example is, I think, the case here as to the plea with regard to the proximity of the counter-balance of the cargo hoist and the cradle. For the dangers inherent in such a proximity appear to me to bring it within the ambit of the "extreme case where it is obvious that some precaution is needed and inexcusable or folly to omit it" referred to in Gilfillan v. National Coal Board⁽³⁾. That case arose from injuries received by a beltman employed to supervise an underground conveyor belt - of considerable length - and it was a part of his duties to clear obstructions occurring on the belt, for on one side of it there was a space less than 1 foot in width between the wall and the belt which at the point in question was exceptionally steep wet and slippery. The cbstruction occurred between the belt and the wall as was usual so that he had to cross the belt to clear it. He stopped the belt, crossed it, removed the obstruction and was returning to the side opposite from the wall when he slipped and sustained injury. He alleged a failure to provide a reasonably safe means of crossing but failed to allege the precautions that should have been taken. It was found at first instance that this was one of those dangerous situations where nothing could be done to make it safe and the case appears to have turned on the proposition that for that reason the employers could not be held liable for "employers are not, apart perhaps from statutory requirement, expected to achieve the impossible". The Sherriff Principal (Sir Allan G. Walker Q.C.) in the course of his most persuasive judgment reviseed all the autherities including Colfar v. Coggins⁽¹⁾, General Cleaning contractors Ltd. v. Christmas⁽²⁾ (making special reference to the dictum of Lord Oaksey I have alreadly quoted), Dixan v. Cementation Co. Ltd.⁽⁴⁾ in which Devlin L.J. at page 418 had said referring to Colfar's case⁽¹⁾:

"I do not think it means that in every case where an unsafe system of working is alleged it is necessary for the plaintiff to undertake the burden of pleading, and proving, an alternative system of work which could have been adopted and which would have been safe. That is for who employer to provide. There may be cases in which the plaintiff will not get very far unless he can show some practicable alternative, but there are also cases ... in which a plaintiff can fairly say:

None of these cases burned on a matter of pleading - they were all decided on the facts proved but such phrases as "neither averred nor proved" keep recurring. I respectfully share the views of the learned Sherriff Principal that:

"how much a plaintiff must aver and prove about the precautions which the [defendant] ought to have taken to safeguard him from risk must depend on the circumstances of the particular case"

and

"The fact that a workman ... is entitled to take the [defendant's] system as he finds it and to do his daily work in accordance with that system, does not mean that his advisers, when an action is contemplated, are relieved from the responsibility of themselves considering, with the aid of expert advice if necessary, what precautions the (defendants) ought to have taken. Having formed their own opinion on these matters, it is then their duty in such a case as this to give to the (defendants) fair notice of the case it is proposed to make against them".

Thus if by the reiterated use of the word "adequately" or "sufficient" in the particulars the plaintiff is paving the way to suggest an alternative system or systems the defendant is entitled to knew that. If no alternative system can be suggested by the plaintiff at this stage the defendant is entitled to know that it is the plaintiff's case again that the particular facts of this case indicate what the operation itself according to the system in use was so clearly danger us that no prudent employer could embark on it without having devised some other system.

9. I would respectfully agree with the learned Registrar when he say that:

"The overriding principle seems to be that ' particulars will be ordered whenever the master is satisfied that without them the applicant cannot tell what is going to be proved against him at the trial'"

but would respectfully disagree when he says:

"and the 'what' is that which is sufficient to indicate to the defendant the nature of the evidence he will be required to adduce to meet the plaintiff's case"

Elkingten v. London Asseciation otc.⁽⁵⁾ is authority for the proposition that the object of particulars is to enable the side to which they were given to know what evidence they ought to be prepared with but the case does not profess to decide that if that object is attained by what has already been given that is an end of the matter. That was a case in which an appeal against a judgment ordering particulars was dismissed; the Court of Appeal did not call on counsel for the respondent and in the course of a very pithy judgment Farwell L.J. observed:

"The object of particulars was to enable the side to whom they were given to know what evidence they ought to be prepared with. The particulars as they stood did not enable the plaintiff to test the question. In his opinion the defendants should given particulars with sufficient precision to enable the plaintiff to test that question."

10. Even applying the limited principle finding favour with the learned Registrar I don't see that the plaintiff has indicated to the first defendant (except in the case of request 2 with which I have dealt) the nature of the evidence it will need. The first defendant cannot know that until it knows if the plaintiff intends to suggest alternative systems. By the statement of claim as it stands the plaintiff seems to me to be leaving the door open to enable her enter into questions of alternative systems. If she is going to let her plead them; if as appears likely she cannot suggest alternative systems at this stage let her say so. After discovery she can, if she wishes, apply to give further particulars of any alternative system that may be prompted by the documents isclosed.

11. I, therefore, allow this appeal and order that the plaintiff do within 21 days serve on the first defendant the further and better particulare not but in the summons in respect of paragraph 4, paragraphs 8(i), (iv), (vi), (vii) and (viii) and (ix) of the statement of claim.

12. In view of the possible importance of this case in the building trade in Hong Kong and of its immediate importance to the plaintiff there are two matters which I feel I should make clear. Firstly, I do not mean for one moment to decide, on the particular facts as disclosed by the pleadings, whether the plaintiff can or cannot succeed if she cannot suggest an alternative safe system. While employers are not insurers of the safety of their employees, if the system used her was inherently highly and obviously dangerous it might well be hold that a prudent employer in Hong Kong should not even embart on such a preject as the Connaught Centre unless he could devise a safer system. I do not know if that project and the methods of erection used are or were unique or particularly dangerous nor whether the systems to safeguard the lives of workmen differ elsewhere but I should like to think that society in Hong Kong has so progressed that the reasonable and prudent employer in 1973 was one who would not start a project if it was necessarily such as to entail, no matter what precautions were taken, a high degree of risk to his workmen.

13. Secondly, I do not in allowing this appeal intend to limit discovery. The obligation imposed by o.24 r. 2 to discover documents relating to any matter in question remains. It seems to me, that even if no alternative system is pleaded by the plaintiff so that the plaintiff would on trial be debarred from alleging an alternative system, this would not relieve the first defendant from disclosure of documents indicating the existence of a safer more expensive system.

14. The 1^st defendant is entitled to the costs of this appeal to be taxed with. Certificate for counsel. As the plaintiff is legally aided the costs will be taxed in accordance with Legal Aid Regelations.

Representation:

Mr. Mills-Owens (Deacons for 1st defendant/appellant.

Mr. F. Eddis (D. ...(illegible)A.) for plaintiff/respondent.

(1) (1945) A.C. 197.

(2) (1953) A.C. 180.

(3) (1972) S. LT. 39 at page 40.

(4) (1960) 3 All E.R. 417.

(5) 27 T.D.R. 329.