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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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 -

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 had switched on the machine and a voice in reply said "We were feeling hot so we just turned on the air-conditioner", or words to that affect. The pain was so accute that the workman did not bother to find out who had actually turned on the machine. He was subsequently sent to hospital in an ambulance.

14. Much reliance is placed by the plaintiff on the instructions given by the workman to the unidentified person in the shop. Unfortunately the extent of these instructions is not clear. The workman was trying to recall a verbal exchange which had taken place more than 2 years prior to the trial and had no notes to guide him or refresh his memory. Although he made no mention of it in his evidence in chief, he did give evidence under cross examination to the effect that he had instructed the unidentified person not to switch on the air-conditioner while he was working on it. This evidence was not reliable because he gave a number of other versions as to what he had said at the time.

15. His first version in chief was "I asked him to switch of the machine". His second version in chief was "I knew which part was leaking so I told them to switch off the machine".

His third version in chief was "I gave instruction upon my arrival I told them to get someone to switch off the air-conditioner plant, that the repair would take about half an hour".

His fourth version was "I told them to switch off the machine".

His fifth version given under cross-examination was "Anyway I asked him to switch off the machine for me to proceed with the repair work. I also said that I would tell him to switch on the machine when I finished word".

His sixth version was given under cross-examination "I spoke to him in a voice like I am now speaking asking him to witch off the machine for about 30 minutes to enable me to start my repair work".

When asked if he expected the unidentified man to stand near the switch board he replied "I was not expecting that since I had given instructions to switch off the machine I thought that I could start working".

Having positively stated that the man to whom he spoke took charge of the electrical equipment he said "I asked this man to switch off the machine".

He later admitted that he was guessing that this man was in charge of the electrical equipment.

Later under cross examination he repeated that he had asked the unidentified person "Not to switch on the air-conditioner", but even later he said "I just told him to switch off the machine, I would later of course ask him to switch on again after I had finished my work".

Yet later he said "I had given him instructions to switch off the machine so I relied on him entirely", and later "I had given instructions to that man to switch off the machine and I thought other people would not interfere with the switch".

However, he again admitted that he would not expect the man to stand at the switch board.

Later he said "I had given that man instructions to switch off the machine so I relied on him entirely".

Furthermore although he had earlier in chief testified that his words after climbing down the ladder after the accident were to the effect "I have told you people don't switch on the machine and now someone has switched it on", he later testified under cross-examination "All the lights in the shop were on when I climbed down the stirs and asked why they had switched on the machine, the reply was that they felt hot."

16. It appears from a comparison of the various pieces of evidence referred to above that he was confused and did not actually know what he had said. The one thing that seems clear is that he did not expect the unidentified man to stand at the switch throughout the half hour that he was to be working on the machine. Furthermore it did not occur to him that anybody would switch on the switch, as throughout his 21 years in the trade, it had never happened to him before. He did not deem it necessary himself to locate the switch board, but relied upon the unidentified man to switch the machine off. He did not deem it necessary to take the precaution of ascertaining whether the switch board had a fuse which could be removed or putting up a notice cautioning anyone in respect of its use or covering the switch in any way. However if the switch board had been in the distance away out of his sight he would then have got somebody to stand by it. Having instructed the unidentified man to switch off the machine he relied upon him in some way to see that it was not switched on again before he had completed his work. He did not know whether all the persons in the shop were employed by the defendants but assumed they were. He did not know whether there were any decorators in the premises and did not know whether decoration work was still going on.

17. Furthermore his memory of the geography of the shop cannot be considered as completely reliable in view of his evidence that the place where he was working could be seen from the shop and that the switch board was at the position marked with a red cross on the sketch Exh. P4. The photographs and sketch themselves showed that visibility into the accounts office would have been very limited from the shop, or at least certain parts of the shop, and certainly to the position where he the workman had been working. Furthermore the switch board would have been on the wall of the small room in the position marked with a red line on the sketch. His evidence that a person standing near the switch board could see the spot where he was working cannot be accepted as likely. Indeed that fact that he indicate the position of the switch board as being where the 'X' in red appears in the plan, might have been an attempt to add some credibility to this statement.

18. Those then are my findings on the facts. It is now necessary to examine the law and to ascertain whether on applying the law to these facts the defendants are liable to the plaintiff in this action. The Occupier's Liability Ordinance Cap. 314 (taken from the Occupier's Liability Act of 1957 in England) has now superseded the rules of common law on the subject of Occupier's Liability. It provides in section 2(1)

"The rules enacted by sections 3 and 4 shall have effect, it place of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them".

19. There can be no doubt and indeed it is not now in dispute in this case that the defendants were the occupiers of these premises at 625 Nathan Road, Kowloon and that the plaintiff's workman was a visitor within the meaning of this ordinance. The word "visitors" includes both categories of visitor who at common law where referred to as invitees and licencees.

20. What is not so clear is the precise scope of the works "dangers due to the state of the premises or to things done or omitted to b done on them".

21. One opinion has been expressed in Clerk and Lindsell on Torts, 14th edition paragraph 1013.

"It is clear that the duty under the Act covers dangers due to the static condition of the premises, and dangers due to the condition of the premises at the time of the visitor's entry, although the condition has been temporarily brought about by "things done or omitted to be done" thereon ..... It is suggested that it does not cover "superadded negligence" such as dropping a sack of sugar on the visitor from a crane, running into him in a car or locomotive, shooting him, scalding him with hot fat, or pouring tea over him, where these acts are done by the occupier or his servants."

22. The learned authors obviously took the view that, since these were what might be described as "current activities" which happened after the visitor had entered on the land, the ordinary rules of tresspass and negligence applied and there was no need to have any regard to the relationship of occupier and visitor.

23. Professor Street in his book on Torts 6th edition page 183 had this to say -

24. There is some support for this view in the judgment given by the judges in the Court of Appeal in England in Videan and another v. British Transport Commission⁽¹⁾ In that case a young child was seriously injured when he trespassed on to a railway line in a small country station. He was injured by a motor trolley and his father who went to his rescue was killed. The widow's claim in respect of the child failed because he was a trespasser and the occupier's servant or agent (the driver of the motor trolley) couldn't have foreseen that he would be there. The widow's claim in respect of the husband was upheld in the Court of Appeal.

25. Lord Justice Denning at page 864 said that if the child was lawfully present, the occupier owes him the common duty of care which is described in the Occupier's Liability Act of 1975. He added however that if the child was not lawfully there, the occupier owes him the same duty as he has always owed to a trespasser since the law as to trespassers had not been affected by the Act of 1957. Lord Harman expressed the same view at page 868. Lord Justice Pearson at page 873 expressed himself as follows.

" The principal arguments presented on behalf of the infant plaintiff were that (i) although the defendants as occupier of the land might owe no duty of care to a trespasser in respect of the static condition of the land, yet the defendants as a person engaged in current operations on the land owed to the trespasser the ordinary duty of care, as one neighbour to another and (2) ...... These arguments are based on passages in judgments decided under the law prevailing before the Occupier's Liability Act came into force when the courts were striving to do justice in particular cases in which the excessive rigidity of the then existing rules as to Occupier's Liability was tending to produce injustice. Now that the Act has provided rules as to Occupier's Liability which are flexible and in line with the general law of negligence, I think that there is no longer any need for this branch of the law to be encumbered with artifical distinctions and complexities."

26. The learned Judges clearly took the view that the Act covered things done or omitted to be done on the premises which did not alter the static condition of the premises and were not of a continuing nature and which may have occurred after the entry of the visitor onto the premises. That is of course the situation in the present case and I hold that it falls within the provisions of the Occupier's Liability Ordinance.

27. What then is the liability of an occupier under the ordinance to a visitor to his premises: It is wet out in Section 3 as follows - -

28. Applying Section 3 to the circumstances in the present case can it be said that the occupier was in breach of the common duty of care? At the time when the plaintiff's workman arrived at the premises the premises were not in a dangerous condition. There is nothing to indicate that anybody up to this time should have been put on guard about any possible danger in the activation of the air-conditioning switch. Indeed the evidence implies that the switch was already turned on for otherwise it would not have been necessary for the workman to ask somebody to switch it off. Once the workman had arrived and the switch had been switched off there was always the risk that it would be innocently switched on by someone who did not know the reason for it being switched off. In my view the circumstances as they existed at that time did not rule out the possibility that such a person might have acted innocently in activating the switch. It does not necessarily follow, as Mr. Pirie has suggested, that the unidentified person, who did switch on the switch, was an idiot. He may have been completely unaware of the existence of the workman in the premises. If for instance he arrived at the premises after the workman and was completely unaware of his presence behind the showcase in the accounts office, I do not see how he can be said to have been negligent. The switch was there to be activated and there was no notice or any indication that it should not be switched on. I do not agree with Mr. Pirie that the person who activated the switch was negligent or was in breach of any duty of care for which his employer (assuming the defendant was his employer) would be vicariously liable. I am however satisfied that it has been proved on a balance of probabilities that the person who let the workman and his foki into the premises and who switched off the air-conditioning plant on the instructions of the workman was an employee and representative of the defendants. That employee of the defendants who let the workman in and who switched off the machine must have appreciated the possible risk of somebody switching it on again. Can it be said that because he took no steps to warn other employees that they should not activate the switch or because he did not take any other precautions such as putting up a notice that the defendants are in breach of the common duty of care under this Ordinance?

29. Mr. Chan has argued that the defendants are not liable because they are entitled to expect under Section 3(3)(b) that the workman, in the exercise of his calling, would appreciate and guard against any special risks ordinarily incident to it and that the risk that somebody would turn on the switch was such a risk. He has relied upon such cases as Roles v. Nathan and Others⁽²⁾ (a case brought under the Occupier's Liability act) and Christmas v. General Cleaning Contractors Limited and Others⁽³⁾ and Bates v. Parker⁽⁴⁾ (cases under the common law). Mr. Pirie for the plaintiff sought to distinguish these cases by reason of the fact that they all related to a pre existing condition in the premises before the workman arrived on the premises. He argued that the workman should have inspected the premises and guarded against the special risks before entering on the work. He has referred me to the case of Smith v. Austin Lifts Ltd. And Others.⁽⁵⁾ He submitted that this dealt with the intervening act of a servant of the occupier, where the independent contractor's servant anticipated that there would be a risk, but because of the intervening act of the servant of the occupier, the risk was increased and the condition of the prmises was not the same as when the servant of the independent contractor has left them earlier. He submitted that in the present case the workman did appreciate the danger of working while the electricity was turned on and so he asked for it to be switched off. He submits that having asked the person who in the circumstances he could reasonably conclude was the servant of the defendant, he was entitled to rely on him to ensure (1) that the switch was switched off and (2) that it remained switched off. Mr. Pirie further submitted that the maxim volenti non fit injuria did not apply because the workman, being appreciative of the risk to himself before starting work had given instructions for the switch to be switched off. In respect of the defendant's argument based upon Section 3(3)(b) of the Occupier's Liability Ordinance, he drew the attention of the Court to the words appearing at the end of that subsection namely "so far as the occupier leaves him free to do so". He argued that in the present case the servant of the occupier defendants did not leave the workman free to guard against the risk of somebody switching on the air-conditioning unit.

30. I think there is a good deal of force in the latter part of Mr. Pirie's argument under section 3(3)(b). Although the authorities quoted by Mr. Chan for the defendants and also Mr. Pirie for the Plaintiff related to defects on the premises which existed when the workman came on, it is my view however that the same principle applies where the danger arises from some act while the workman is already on the premises. Section 3(3)(b) means that the occupier is entitled to expect that the workman would in the exercise of his calling appreciate and guard against risks ordinarily incident to his employment even if they may arise from current activities. But the words of the section are "so far as the occupier leaves him free to do so". In this case the defendant's servant did not leave the workman free to guard against the risk of somebody switching on the electricity. He took it upon himself to switch off the electricity instead of showing the workman where the switch was and having done so he took no steps whatsoever to guard against the risk of some innocent person switching the machine on. In my view he was in breach of the common duty of care to see that the workman was reasonably safe for the purpose for which he had come to the premises, namely to repair the air-conditioning machine. I do however have some sympathy with the submission for the defendants that the workman himself should have appreciated this risk. It has not been proved to my satisfaction on a balance of probabilities that the workman did instruct the servant of the defendants to ensure that the electricity was switched off for the full time he was working on the machine. If he did not locate the switch himself and take some steps to prevent that happening (for instance putting up a notice or covering the switch with cello tape), he at the very least should have instructed the servant of the occupier that it not only needed to be switched off but that it should remain switched off throughout the time that he was working on the machine. He was to some extent the author of his own misfortune. There was evidence from another technician in the same calling as the workman that in similar circumstances he would have taken some precautions.

31. It is my judgment that the liability in this case should be apportioned, for while the defendants (through their servant) were in breach of the occupier's common duty of care within the meaning of the Ordinance, the plaintiff's workman was also partly to blame for not taking precautions himself to guard against the risk of somebody switching on the machine.

32. That liability may be apportioned in this way is clear from the following passage in Clark and Lindsell on Torts 14th edition at paragraph 1029.

"Contributory Negligence In the light of what has been said above and of the wording of section 2(3): "The circumstances relevant for the present purpose include the degree of care, and want of care, which would ordinarily be looked for in such a visitor," it is clear that , whatever the position may have been before the Act, the apportionment provisions of the Law Reform (Contributory Negligence) Act 1945, apply to an action for breach of the common duty of care exactly as to any other action for negligence of breach of special duty."

33. References are made to Woollins v. British Celanese Ltd.,⁽⁶⁾ (where the plaintiff's damages were reduced by one half; Blackett v. British Railways Board⁽⁷⁾ (by one third); McDowell v. F.M.C. (Meat)⁽⁸⁾ (by one fifth); bird v. King Line⁽⁹⁾ (by two thirds); Bunker v. Brand (Charles) & Sons Ltd.⁽¹⁰⁾ and Stone v. Taffe⁽¹¹⁾ (by one half).

34. The same view is taken by Professor Street' on his book on Torts 6th edition at pate 187.

35. Apportionment of liability was also made in a case which has similar features to the present case, namely Fisher v. C.H.T. Ltd and Others(2).⁽¹²⁾ The facts are set out in the head note as follows.

36. The plaintiff based his action in that case on negligence, breach of duty under section 2 of the Occupier's Liability Act of 1975 and breach of certain regulations covering the use of electricity in factories. Lord Denning in varying the judgment of the Court below as to the respective liabilities of the 1st and 3rd defendants said:-⁽¹³⁾

37. Liability was approved by the Court of Appeal as being 60% on the part of the 2nd defendants but the Lower Court's finding that the 1st and 3rd defendants were each 20% to blame was varied to 10% and 30% respectively.

38. It will be noted that the largest share of responsibility was put upon the occupier whose employee had switched on all the switches. It was the act of switching on all the switches in the circumstances of that case which was regarded as being negligent and in breach of the common duty of care. That was clearly obvious as all the judges agreed. In the present case however it cannot be said that the person who switched on the electricity could have foreseen that injury might have occurred to somebody. However it seems clear to me that the person who switched off the electricity on the instructions of the workman of the plaintiff, must have foreseen the possibility that some innocent person might have switched it on again. The 1st defendants in the above mentioned case were held 10% to blame because they had breached their common duty of care to see that the plaintiffs would be reasonably safe. It must have been foreseen in that case that the plaintiff would have to work in an area of exposed electric wires and that he would be in danger in the event of the switch being turned on. After all the 1st defendant in that case had a maintenance man at the premises who knew all about the switches and who was taking an interest in the work. It seems to me that the defendants in the present case were in a not dis-similar position. Their employee knew all about the switches for the air-conditioning plant and had shown sufficient interest to switch them off when he was requested to do so. Whilst in the above mentioned case the employers of the plasterer was found to be 30% to blame, there must be a distinction in the present case. The workman of the plaintiff in the present case is a skilled technician. He himself was the representative of his employer (the plaintiff) on the premises. He was to some extent the author of his own misfortune.

39. It is very difficult to apportion liability in a case such as this. Opinions may differ. However after studying all the circumstances, as I am enjoined to do under section 3(4), I hold that the occupier was 70% to blame and the workman 30% to blame.

40. As I said at the beginning of this judgment the 3rd essential element of the plaintiff's claim is that the amount he 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. It is therefore necessary for me now to ascertain what damages this Court would have awarded to the workman but for the provisions of the Workmen's Compensation Ordinance.

41. The doctor who treated him at the Kwong Wah Hospital was Doctor Sai (PW2) and he gave the medical history of the workman. It has been established to my satisfaction that the workman was admitted into the Kwong Wah Hospital on the 13th of April 1977 with an amputated right thumb. After initial preventive treatment which involved closing up the wound, he was discharged on the 18th of April 1977. However when the wound had sufficiently healed he was readmitted into the Kwong Wah Hospital on the 25th of May for a reconstruction of the right thumb. This was done by means of a bone graft from the iliac (hip-bone). The skin of the reconstructed thumb came from the abdominal wall. On top of the reconstructed thumb was added the sensitive skin flap of the ring finger to give the workman a better sensation in his thumb. The bone and the skin grafts required that he should be motionless for some time with his right hand affixed to his right hip. After the thumb had been reconstructed he was eventually discharged from hospital on the 16th of August 1977. At this time there was partial functional loss of the terminal phalange and stiffness of the metacarpo-phalangeal joint of the right thumb. He was seen again on the 6th of September and was examined by a medical board on the 12th October. On this day he was told that he could go back to work. The medical board assessed his permanent disability at 10%. Even now he has difficulty using the tools of his trade such as pliars and screwdrivers etc.

42. The workman himself gave his opinion while giving evidence that his efficiency had been impaired by about 20%. At the time of the accident the workman was earning $110 per day and he was off work for 157 days. He would therefore have been entitled to claim damages for loss of wages in a sum of $17270. Furthermore in my view the sum which would have been awarded for pain and suffering and loss of amenities would have exceeded $12000. Taking this together with the sum of $17270, and taking into consideration loss of future earnings by reason of his inability to earn as much overtime, I consider that an award of damages would have exceeded $30000.

43. Since the liability of the defendants has been apportioned at 70%, the defendants would have been liable to pay a sum slightly in excess of the amount claimed in this case. I am therefore satisfied that the plaintiff is entitled to recover from the defendant's the full amount of compensation claimed namely $18571.34. I therefore give judgment for the plaintiff in this sum together with costs to be taxed on the upper scale unless otherwise agreed. I also hold that the defendants should pay interest on this sum at the pate of 7% from the date of the payment of this sum to the workman until the date of judgment.

Representation:

Mr. P. Taylor of Hastings Co. for the plaintiff.

Mr. Warren Chan instructed by Yung, Yu, Yuen for the Defendant.

(1) [1963] 2 All. E.R. 860;

(2) [1963] 2 All E.R. 908

(3) [1952] 1 All E. R. 39

(4) [1953] 1 All E. R. 768

(5) [1959] 1 All E. R. 81 (H.L.)

(6) [1966] 1 K,I.R. 438 (C.A.)

(7) [1967] C.L.Y. 2664

(8) [1968] 5 K.I.R. 456 (C.A.)

(9) [1970] 2 Lloyds Reports 439

(10) [1969] 2 Q.B. 480

(11) [1974] 1 W.L.R. 1575

(12) [1966] 2 Q.B 475

(13) At page 482