Cheung Sai Fan v. Argos Engineering and Heavy Industries Co. Ltd.

HCPI000482/1998

HCPI 482/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.482 OF 1998

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Coram: Deputy High Court Judge McMahon in Court

Dates of Hearing: 7-9, 12 and 16 June 2000

Date of Handing down Judgment: 5 July 2000

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J U D G M E N T

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Background

1. This action arises out of an accident which occurred on 6 July 1995 as the then 43 year old plaintiff was placing empty grouting or concrete bags into a plastic bucket in the course of cleaning up after concreting work on premises where he was employed by the defendant.

The plaintiff's case

2. The plaintiff alleges against the defendant that it was negligent and breached implied terms of his contract of employment. No allegation is made as to any breach of a statutory duty. The plaintiff presented his case on the basis that the implied terms of his contract of employment were in the same terms as the defendant's common law duty of care and the case proceeded on that basis.

3. That case was that whilst going about his duties of assisting in a grouting operation on premises of China Light & Power at its Tuen Mun Power Station, he had been picking up empty plastic bags which had contained concrete or grouting material from the floor of a generator room in which he and his team were working, and had been placing those empty plastic bags in a bucket. As he was pressing those bags into the bucket, it moved or slipped on the floor which was partly wet and toppled over. As a result, the plaintiff then fell. As he did so, his right hand struck the bolt of a coupling on scaffolding which was nearby. As a result of striking his hand on this bolt the palm of his hand was torn. Following that, his hand then struck the ground. He claims that a bone in his right wrist at the distal portion of the radio-ulnar bone then fractured.

4. As a result of this latter injury, he received sick leave until 18 January 1999. He claims general and special damages and says now that he has a diminished capacity to work.

The Defence case

5. The Defence denies that it is liable in negligence, or in breach of the implied terms of the contract of employment and further alleges contributory negligence on the part of the plaintiff in the way that the plaintiff went about placing the empty plastic bags in the bucket.

Particularization of the pleadings

6. As a preliminary matter it is true to say that taking the plaintiff's pleadings at their face and the plaintiff's initial opening and presentation of his case, the plaintiff's claim seemed to center upon the presence of scaffolding nearby where he was working. His allegation in particular concerned a protruding bolt from a coupling which was one of a number of couplings holding the metal scaffolding together. It is that bolt he claims his hand hit as he was falling to the ground following the bucket slipping on the floor.

7. Subsequently, in the latter part of his case, the emphasis of his evidence and submissions turned more to the state of wetness of the floor upon which the bucket was placed and upon which the plaintiff claims the bucket slipped in the course of his placing the empty grouting or concrete bags into it. His allegation in that regard was that the floor of the premises was concrete and had become partly wet as a result of the grouting operation that was being conducted by himself and his workmates in the vicinity.

8. The particulars contained within the plaintiff's statement of claim as to breach of the employer's duty of care and breach of contract, consist, in so far as any one of those particulars is specific, of allegations concerning the nature and location of the bolt which the plaintiff's palm struck as he was falling. In other words, those particulars in the main restrict their specific allegations to the state of that bolt. The only particulars which were given which could conceivably relate to the state of the floor upon which the plaintiff alleges the bucket slipped, are the two generalized particulars (h) and (i) which together allege that the place of work was unsafe and the system of work provided to the plaintiff was also unsafe.

9. Mr Sakhrani, for the defendant, during the course of his final submissions and during the course of the evidence, suggested that these general particulars were insufficient and that the plaintiff's reliance upon the state of the floor had taken him by surprise and should not be permitted.

10. Ms Pinto, for the plaintiff, said the pleadings were adequate and did cover an allegation that the defendant was at fault in allowing the plaintiff to work on the wet floor. She pointed to paragraph 2 of the Amended Statement of Claim which specifically alleges that the bucket slipped on the floor which was wet and slippery in patches. She points also to the fact that in paragraph 3 of the Defence it is specifically denied that the floor was slippery at the time of the accident. She said, accordingly, that the defendant was well aware that the state of the floor was part and parcel of the plaintiff's allegations of breach of duty and contract, and that the specific allegation in paragraph 2 of the Statement of Claim removed any element of surprise in so far as the defendant was concerned.

11. In my view, Ms Pinto is right. I accept that the pleadings, albeit barely, do sufficiently state and particularize that the plaintiff's claim is founded, in addition to his allegation concerning the coupling bolt, also on the wet state of the floor.

12. In my view, taking the pleadings as a whole, there is sufficient particularization of the claim relating to the wet state of the floor so as to allow the defendant to have properly appreciated that part of the claim against it. Indeed that, in my view, is why the Defence specifically denies that the floor was slippery at the time of the accident as set out in paragraph 2 of that Defence.

13. Accordingly, I will proceed to consider the question of liability on the pleadings as they stand, which pleadings I accept properly incorporate the claim that the wet state of the floor caused the plaintiff to fall and thereby injure his hand.

Liability

14. The grouting operation, according to the plaintiff, involved the concreting of a machine base onto the existing floor. The plaintiff claims that the course of that operation required concrete to be mixed with water in the vicinity of the machine base and for that wet mixture then to be applied as grouting so as to allow that machine base to be properly seated on the floor. As a result of that work, the plaintiff said it was necessary to bring up water to a small wooden dam that had been built near the machine for the purpose of mixing the concrete with water. As a result, both by way of seepage from that dam and as a result of spillage from buckets which had been used to bring the water up to their place of work, some parts of the floor of the work area had become wet. The plaintiff said that he, during the course of this work operation, had had the duty of picking up the various empty plastic bags which had contained the concrete which had been used for the purposes of the grouting work. He was to put them in a bucket and then remove them from the work area. The plaintiff's evidence was that the bucket toppled over on the wet floor in the course of his doing this job and as a result of the bucket slipping, he also fell and injured himself.

15. The plaintiff, in his evidence, made various allegations against the defendant so far as the place of work and the system of work provided by it were concerned. He said that the coupling on which he struck his hand should have had the end of the bolt which protruded from it "capped" with some soft material. He said, in addition to this, the scaffolding itself should have been surrounded by some warning tape so as to alert him to the fact that he should have stayed away from it. He suggested that if that had been done he would have undertaken the collecting of the empty grouting bags and the placing of the plastic bucket at some other location. He also alleged that the gloves he had been provided with were unsuitable for the task of picking up and placing the empty grouting bags in the plastic bucket. He said those gloves were made with cotton material which, when it became impregnated with a wet grouting mixture, would become slippery. He suggested that leather gloves should have been provided to him instead. He finally suggested that the floor on which he was working was bare concrete which, being partially wet, had become slippery.

16. Mr Ng Kwok Lam ("Mr Ng") the only defence witness called on liability was a safety officer who had, at the material time, worked for the defendant, although not at the time of giving his evidence. He gave evidence of the defendant's provision of various safety talks and presentations to its workers concerning and explaining safety precautions to be taken by them when working. He said in addition to the provisions of those safety talks, he also patrolled the work area where the defendant was working, somewhere between two and four times everyday. He said there were also, in addition to himself, other safety officers on the site at China Light & Powers Co. Ltd, Tuen Mun Power Station, and they also patrolled those premises including the room where the defendant was working. He said that he had been to the room where the plaintiff had been working on the day of the accident but prior to the accident having occurred. He said when he went through that room, the grouting work was underway and that the floor was dry. He said that the surface of the floor was plywood which had been placed there to protect the concrete floor itself from the effects of the grouting mixing operation.

17. He said additionally, a large sponge was placed on each level of the generator room in which the plaintiff had been working so that, if necessary, the area could be dried off. He said because of the particular machines in the generator room where the plaintiff was working, it was a requirement that flooding was to be prevented. He said with grouting work, the workers were careful.

18. He said he had worked in the construction industry as a safety officer for some 17 years. Over that time, he said, he never had any experience of bolts protruding from scaffolding coupling being capped or covered with any soft material. Further, he said that there was no necessity to have any warning tape around the scaffolding itself. He said that was done only when people were working at a height on the scaffolding to prevent people coming near it, and so avoiding the risk of an object falling onto them.

19. He said that two statements were taken by him from the plaintiff following the accident. He said both those statements were taken from the plaintiff during the course of him interviewing the plaintiff. He said that the plaintiff in the course of those interviews told him how the accident occurred and he then wrote that down. Subsequently, the plaintiff read the statement before signing it.

Conclusions

20. The plaintiff struck me as somewhat evasive as a witness. He, on many occasions, did not answer questions directly but appeared to be more interested in providing an answer which favoured his own case. His evidence, particularly in cross-examination, was sometimes confusing. For example, he initially suggested that a cause of him falling over may have been because the empty grouting bags he was placing in the plastic bucket were wet and that, as a result of pushing them into the bucket, his hands slipped on those bags and he then fell over. From that part of his evidence, he initially seemed to be suggesting that the reason his hands slipped was that he was wearing cotton gloves which had become impregnated with a mixture of grouting and water. But, subsequently in his evidence, he said he was not wearing gloves. In his supplemental witness statement which was adopted by him as part of his evidence-in-chief he had also asserted that the cotton gloves might have been a reason for him slipping when he was putting things in the bucket. At the end of the day, his evidence so far as any gloves he was wearing or the slipperiness of the bags causing or contributing to the accident was inconsistent and confusing. I might add no such allegation was particularized in the Statement of Claim.

21. This area of his evidence in my view has no weight and is indicative of the plaintiff's vagueness and inconsistency in his evidence generally.

22. So far as the evidence of the bolts of the scaffolding coupling being uncapped is concerned, I accept the evidence in this regard of Mr Ng. The plaintiff produced in evidence, Exhibit P1, a scaffolding coupling which he said was of the sort that his hand hit. That scaffolding coupling appears to be a perfectly normal coupling. It is true that a bolt does protrude from it but that protrusion, in my view, could not constitute any obstruction or danger to workers in the vicinity of the scaffolding. The bolt protrudes only a few inches from the body of the coupling itself. In my judgment, it could not have protruded into the work place so as to foreseeably cause danger to workers nearby. It was incorporated into a scaffolding structure which itself must have been plain and obvious to any person in the vicinity. Whilst it is true that a bolt protruding from a coupling of this nature may well be capable of causing injury if someone falls against it by its nature it is no more dangerous than any other object with an edge or small protrusion which is reasonably present at a work place. In my view, it would be unreasonable to require an employer to cap or shield scaffolding coupling bolts in the ordinary circumstances of their use.

23. Equally, I reject the plaintiff's evidence that the scaffolding itself should have warning tape around it. I accept the evidence of Mr Ng that such warning tape is used only when there is a danger of workers on the scaffolding dropping objects onto people below. In my judgment, the use of such tape to alert workers, such as the defendant, to the actual presence of scaffolding in their work area is unnecessary. The scaffolding itself is an easily seen and identifiable object. The suggested requirement to provide warning tape simply so as to alert workers to the presence of scaffolding obvious in itself is both unnecessary and unreasonable.

24. I add that so far as the scaffolding coupling and the scaffolding itself is concerned, the plaintiff's evidence was to the effect that after he fell his hand struck the bolt protruding from the coupling and then went on and struck the floor, at which point the bone in his wrist was broken. The damage alleged to have been done to the plaintiff's hand by the coupling bolt was the laceration to the palm of that hand. There was no medical evidence before me as to any after-effect or residual damage caused to the plaintiff as a result of that laceration. The primary damage complained of by the plaintiff in these proceedings was to the bone in his wrist which was broken, on his own evidence, when his hands struck the floor of the workplace.

25. On that basis, I might add further that I am not satisfied that the nature of the coupling or the bolt protruding from it, or indeed any part of the scaffolding, was causative of the plaintiff's damaged wrist. The only evidence before me in that regard is that the plaintiff's wrist was damaged when it struck the floor of the workplace.

26. In my judgment the plaintiff has failed to prove that the defendant was in breach of his duty to provide a safe place of work by allowing the scaffolding or the protruding coupling bolt to be present in the room where the plaintiff was working.

27. That means for the plaintiff to succeed in respect of any part of his claim he must establish that his fall was as a result of the defendant's breach of duty. In that regard, the plaintiff has made as perhaps his primary allegation that the floor where he was working was partly wet, causing the bucket to slip and him to fall and damage his hand and wrist.

28. In his witness statements, evidence-in-chief and cross-examination, the plaintiff agreed that there was a "little" water on the floor "but not much", he said only "patches" of the floor were wet and described the floor as being "a little wet". Bearing in mind my assessment of the plaintiff as a witness and the evidence of Mr Ng who I accept as a reliable and candid witness for the defendant, in my judgment the plaintiff has not established that the floor was so wet so as to render the state of the floor a breach of the defendant's duty to provide the plaintiff with a safe place of work.

29. Nor, in my opinion, has the plaintiff established that any wet patches on the floor were a likely cause of the plastic bucket slipping and toppling over.

30. Indeed, from his own evidence, it appears that the plaintiff himself was in two minds about this, because as I have said he had asserted in his evidence that the cotton gloves he had been wearing might have been the reason for him slipping when he put things in the bucket, although he later contradicted himself so far as the wearing of gloves was concerned and said he was wearing none. In this regard he said also in his oral evidence before me that the empty grouting bags he was placing in the plastic bucket were themselves slippery suggesting that as a reason for falling. He said that he used force when he was pushing down the grouting bags into that plastic bucket presumably to make more space for other grouting bags.

31. He agreed in cross-examination that he had been a "little careless" in doing so although he said that references to him being careless in the two statements taken from him by Mr Ng had been fabricated by Mr Ng and had never been said by him. In my view he had said this to Mr Ng and that was because he had been somewhat careless in performing this task.

32. At the end of the day, the plaintiff's evidence as to how this accident had come about was uncertain, vague and unconvincing. In my view, each of the causes he at various times attributed to this accident have, on the evidence, no substance.

33. It is fair to say that the primary allegation he made against the defendant as to the cause of his fall was the partly wet state of the floor he was working upon. So far as that is concerned, I accept that the defendant had taken reasonable steps to provide a safe workplace and system of work. The grouting mixture, when mixed with water, was surrounded by wooden form work so as to create a dam. That dam was designed to prevent the grouting mixture and water escaping onto the floor of the working environment. The Plaintiff's task was to clean up the floor by picking up the empty grouting bags. In other words his duty was to clean up after the grouting work in this regard. The defendant had provided the plaintiff with non-slip footwear. It had provided him with cotton work gloves which were, in my view, adequate for the light work duties he was performing albeit he says he was not wearing them at the time of this accident. I accept from the evidence of Mr Ng that the defendant had provided sponges on the various levels of the generator room so as to keep those premises dry. I accept from the evidence of Mr Ng that because of the machinery in that generator room, it was advisable to try and keep that area dry. From all of the evidence, I am satisfied that there was no more than a minimal amount of water on the floor of the work place. In my view the defendant had taken all reasonable precautions to provide the plaintiff with a safe place of work, even allowing for the fact that a workman such as the plaintiff may have been somewhat careless on occasion.

34. I should say also that even if I had found a causative relationship between any wet patches on the floor and the Plaintiff's fall, I do not think the defendant, on the evidence in this case, could have reasonably arranged for the floor of the workplace to be made completely dry before the Plaintiff started his own cleaning up task.

35. Further the task of collecting the empty bags and the placing of them in the bucket was a simple and straightforward task easily able to be performed by the plaintiff alone. It is precisely the sort of task that could reasonably be performed in the way it was by the plaintiff, and the Plaintiff himself be left to decide how to do it bearing in mind his experience as a worker.

36. Having considered all of the evidence in this regard I am not satisfied that the plaintiff has established any breach of duty by the defendant as pleaded.

37. Accordingly, I order judgment in this action to the defendant. I make an order nisi that the plaintiff pay the defendant's costs.

Representation:

Ms Josephine Pinto, instructed by Messrs Anthony Kwan & Co., assigned by DLA, for the Plaintiff

Mr A.K. Sakhrani, instructed by Messrs Deacons, Graham & James, for the Defendant