Lau Shui Chun v. Leung Tung Ping Metal Factory Ltd. and Others

HCPI000075/1997

1997, No. P. I. 75

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES

(formerly known as HC Action No.A1780 of 1990)

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Coram: Suffiad, J. in Court

Date of Hearing: 1 - 4 and 7 September 1998

Date of judgment (handed down): 7 October 1998

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JUDGMENT

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1. The Plaintiff brings this action against the Defendants for damages in respect of personal injuries sustained by him when he fell down inside a communal toilet on the 4th floor of Block 1 Cheung Sha Wan Factory Building ("the Building") on the morning of 19th March 1987. The claim is brought against:-

(a) the 1st Defendant who, at the material time, was the Plaintiff's employer and who was operating a factory on the 4th floor of the Building;

(b) the 2nd Defendant being the owner and occupier of the toilet where the accident occurred; and

(c) the 3rd Defendant being the cleaning company engaged by the 2nd Defendant to clean the toilet in which the accident happened.

The Plaintiff's Case on liability

2. The Plaintiff's case is that the Plaintiff was, at the material time, an employee of the 1st Defendant and has been so for the past ten years before the accident working at the 1st Defendant's factory situated on the 4th floor of the Building. The factory premises of the 1st Defendant did not have any toilet facilities itself. Each floor of the Building had a communal toilet and also a communal bathroom. All the workers in the 1st Defendant's factory as well as all other factory workers of other factories on the 4th floor of the Building had to use the communal toilet. The Building was owned by the 2nd Defendant (from whom the 1st Defendant rented the factory premises) who engaged the 3rd Defendant to clean the toilets in the Building including the one on the 4th floor.

3. The actual cleaning of the toilets including that on the 4th floor would be carried out by cleaning workers employed by the 3rd Defendant company. On each floor of the Building, the communal toilets and the communal bathrooms are separately located but close to each other being on two sides of the same corridor. The toilets have only toilet facilities, without taps or basins for hand washing which, together with shower facilities, can be found only in the communal bathroom across the corridor. The 4th floor toilet would be cleaned at between 9 a.m. to 9.30 a.m. each morning. The latrines and the floor area of the toilet would be sprayed with water from a hose connected to one of the taps in the communal bathroom, then the cleaner would use a bamboo broom to sweep away all the excess water on the toilet floor into the drain hole situated at one end of the toilet and the floor of the toilet would then be left to dry off 'naturally'. It would not be mopped dry.

4. On the morning of 19th March 1987, it was just after one such cleaning of the toilet on the 4th floor of the Building that the Plaintiff entered the toilet intending to use the toilet facilities when he slipped and fell on the wet and slippery toilet floor thereby sustaining severe head injuries being unconscious for about 3 days.

5. The claim is brought against the 1st Defendant on the basis that it is in breach of its common duty of care towards the Plaintiff, its employee, by failing to provide a safe toilet for use by the Plaintiff. Alternatively, the Plaintiff says that the 1st Defendant is in breach of its statutory duty in that it has failed to comply with Regulation 37 of the Factories and Industrial Undertakings Regulations which provides that every notifiable workplace shall be provided with sufficient and suitable latrine.

6. As for the 2nd Defendant, the basis of the Plaintiff's claim is that the 2nd Defendant is in breach of its duty as an occupier under the Occupier's Liability Ordinance by permitting or allowing the toilet to be wet and slippery and/or without any warning signs of the slippery conditions of the toilet.

7. In so far as the 3rd Defendant is concerned, the Plaintiff bases its claim on the breach by the 3rd Defendant of its common law duty of care as well as under the Occupier's Liability Ordinance towards users of the toilet in that its cleaners have failed to properly dry off the toilet floor after cleaning but instead have left it wet and therefore slippery thereby giving rise to this accident.

8. The main issue in so far as liability is concerned is whether the Plaintiff had slipped on the wet and slippery floor of this toilet as contended for by the Plaintiff's counsel or whether he had fallen in the toilet due to a cause other than slipping as suggested by the Defendants. Ordinarily in such a case, there will be evidence coming from the Plaintiff, if from no other witness, as to how the Plaintiff came to fall in the toilet. However, in this case, the matter has been made somewhat more complicated by the fact that because of the severe head injury sustained by the Plaintiff, he is unable to remember with any precision as to how he came to fall down in the toilet and there are no eye witnesses who could say how the Plaintiff fell.

The Plaintiff's evidence

9. The Plaintiff gave evidence that on the day of the accident he went to work at 7.30 a.m. At about 9.30 a.m. he went to the communal toilet which had just been cleaned by the cleaning worker. He found the toilet floor very wet. There was no warning notice about the floor being slippery and the ventilator in the toilet was out of order. He was walking in a normal steady manner and was not in a hurry. He was wearing a pair of hard rubber slippers which was his normal footwear when working in the factory. He went into the toilet, slipped and fell. He is not able to recall exactly what he was doing immediately before he fell but he could think of no other reason why he would have fallen on the floor of the toilet.

10. The Plaintiff also said that in practical terms he had no choice but to use that toilet whatever its conditions and that the 1st Defendant had never warned him of the danger of slipping inside the toilet neither had the 1st Defendant taken the matter up with the landlords to have the slippery condition of the toilet improved.

11. In cross examination the Plaintiff agreed that he had been working as a metal polisher with the 1st Defendant for about 10 years before the accident and that while he wore normal shoes to work, he, as well as other workers in the factory would invariably change to wearing rubber slippers at work. This, the Plaintiff explained was due to convenience because the toilets are wet and also when they go to wash up after a day's work there would be no need to remove the rubber slippers when washing their feet.

12. The Plaintiff further agreed that for the 10 years or so that he had been working at the 1st Defendant's, he would usually go to the toilet each day at about 9.30 a.m. and because that was the time when the toilet would just have been cleaned, the toilet would always be wet from the water after cleaning. He further said that puddles of water would collect around the middle part of the toilet and he had never seen the cleaner sweep away the water into the drain hole after cleaning. Moreover, as that was the only men's toilet on the 4th floor of the Building, he had to use it whatever its condition.

13. When asked about the ventilation and the lighting in the toilet the Plaintiff said that the lighting was dim but adequate for him to see his way around and to see if there was any obstruction in his way. As for the ventilation in the toilet, the Plaintiff agreed that there were louver windows near to the ceiling on three sides of the toilet. The Plaintiff maintained that there was a ventilator in the toilet but at the time of the accident the ventilator was out of order. This according to the Plaintiff was why the ventilation in the toilet was not good and that at times it would not be until the afternoon that the toilet floor would dry after the morning cleaning. The Plaintiff was not aware of the cleaner cleaning the toilet for a second time each day in the afternoon.

14. When asked about the warning notice in Chinese painted on the wall at the entrance to the toilet and warning of the wet floor in the toilet, the Plaintiff initially maintained that there was no such warning on the wall. Ultimately, however, the Plaintiff agreed that there was a notice on the wall but the writings were not clear enough to read.

15. The Plaintiff also said that he would go to the toilet about two to three times in a day and he normally used the second or third cubicle on the right as one enters the toilet to urinate. He would first go up to the cubicle, then unzip his trousers to urinate and when he had finished urinating he would zip up his trousers before walking off.

16. He further said in cross examination that on the day of the accident he wore his usual rubber slippers and walked as he normally did into the toilet. All he could remember was that the toilet floor was wet with puddles of water. He could not remember anything else. When asked by counsel for the 1st Defendant the reason why he fell he said he fell because he fainted and when he woke up he knew he had fallen down in the toilet. He added that he had 'fainted' for 3 days. When he woke up he could not remember why he fell down because the fall had affected his memory.

17. He also agreed with counsel for the 2nd Defendant that in the factory where he worked the work generates a lot of metal dust and also that lubricating oil is used in the factory. He further agreed that it is possible that the floor of the factory will have some metal dust and possibly some drops of lubricating oil. Therefore it is possible that the soles of his slippers might have picked up some metal dust or lubricating oil from the factory floor. However, the Plaintiff said that when going from the factory to the toilet, he would go straight to the toilet and would not clean his slippers on the door mat of the factory before going to the toilet.

18. The Plaintiff called a witness, Ku Dip Lun, who is the brother-in-law of the Plaintiff working at the same factory as the Plaintiff at the material time, namely the 1st Defendant's factory. He had worked at the factory about the same time as the Plaintiff, perhaps just slightly longer as he had introduced the Plaintiff to work there.

19. His evidence was that in the 10 years that he had worked at the 1st Defendant, he was aware that the toilet was cleaned once a day in the morning about 9.00 a.m. to 9.30 a.m. and after cleaning the toilet floor would be wet with a thin layer of water. He knew that water was used to clean the toilet but he did not pay attention to whether the cleaner would use a brush or broom to sweep the water into the drain hole as part of the cleaning. It would take about 2 to 3 hours, sometimes up to noon time for the toilet to dry up after the cleaning in the morning. He was sure that there was no ventilator in the toilet.

20. In his statement which was used as his evidence in chief, he said there was no warning notice however one was put up after the accident. However, in cross examination he said he did not pay attention to whether there were any warnings on the wall (warning people about the wet floor), but that there could have been such a warning.

21. On the day of the accident, a worker from a neighbouring factory came and told him that one of his colleagues had fallen down in the toilet. He went over to the toilet to find the Plaintiff sitting on the toilet floor supported by Leung Yiu Chung, the son of the proprietor of his factory. The Plaintiff was in a semi-conscious state and he noticed that the zipper of the Plaintiff was down. They then carried the Plaintiff back to the factory where the Plaintiff vomitted. An ambulance was called and the Plaintiff was taken to hospital.

22. He was able to say that when he saw the Plaintiff in the toilet, the floor of the toilet was wet and slippery since it was only shortly after it had been cleaned.

23. In cross examination he said that when he went in to the toilet after the accident, the toilet floor was wet, wet enough for a person to slip although there were no puddles of water present. He agreed that if one walked carefully one would not fall.

24. He also said in cross examination that there were metal dust and metal chips on the floor of the 1st Defendant factory but no lubricating oil. That was because no lubricating oil was used, rather wax was used for the polishing in the factory. He agreed that sometimes wax may drop on the floor of the factory.

Defence Evidence

25. Only the 1st Defendant called one witness to give evidence of the accident itself, that witness being Leung Yiu Chung, the son of the owner of the 1st Defendant factory, himself being a director of the 1st Defendant, and who also worked at the factory at the material time.

26. He gave evidence that the 1st Defendant had rented the factory premises from the 2nd Defendant in August 1975 and at the time of the accident he had been working there for some 10 years. The 1st Defendant was incorporated in 1986. Prior to that it was an unincorporated business doing the same work and that business was owned by his father.

27. The factory premises had no toilet itself and all the workers used the communal toilet on the 4th floor of the Building. He himself as well as his father also used that same toilet. As far as he knew the cleaner would use a hose connected to a tap from the bathroom opposite to clear away the dirt or rubbish by spraying water on the floor of the toilet but in all the 10 years he had been there he had never seen the cleaner use a broom or a mop to sweep away the water. The floor of the toilet would be wet after the cleaning and left to dry off by itself.

28. He said there was a warning notice in Chinese at the entrance to the men's toilet. The Chinese words translated reads "Take note floor surface is wet and slippery please be careful".

29. He also gave evidence that everyone working at the factory wore slippers. So did he. The reason he gave was that the work at the factory generated a lot of dirt and dust and workers wore slippers so that they could easily clean themselves and the slippers in the communal bathroom during their work.

30. On the day of the accident, he was in the toilet at the same time as the Plaintiff. The floor of the toilet was wet as it had just been cleaned. The Plaintiff was at the 2nd cubicle as one enters the toilet on the right while he was in a cubicle at the far end, furthest from the entrance. While he was in the cubicle, he heard a loud "bang" but as he was defecating he did not come out. Shortly after that he heard a person saying someone had fainted. That person was a worker from another factory on the same floor of the Building. He then came out and saw the Plaintiff lying outside the 2nd cubicle with his head and shoulder against a wall. He told the other worker to get assistance and subsequently when Ku Dip Lun came, they carried the Plaintiff back to the factory and an ambulance was called for.

31. In cross examination Leung said that he had complained about the toilet being wet on two previous occasions. Once was when the cleaner started to spray the toilet with water from the hose while he was using it, and the second time was after the cleaner had cleaned the toilet and after the hose had been removed, he walked in to find the floor very wet. Both occasions were before the accident. Apart from these two occasions, he had made no other complaints nor had he heard of any complaints in respect of the toilet from other workers.

32. He agreed that there would be some metal dust on the floor of the factory, but not a lot since vacuum cleaners were installed at certain fixed positions in the factory. He denied that there would be any metal chip on the floor of the factory. He further agreed that wax was used in the factory, but not lubricating oil, and it was possible that some wax may have dropped on the floor of the factory.

33. That was all the evidence adduced relating to the fact of the accident.

34. The 2nd Defendant called four witnesses. Cheung Kwong Hung, an Estate Assistant of the Housing Department; Chan Chi Ping, a Housing Manager of the Housing Department; Chan Ching Seung, an Assistant Housing Manager of the Housing Department and Lai Siu Kee another Housing Manager. None of the evidence from these witnesses touches upon the accident itself. In fact the evidence of Lai Siu Kee is that having gone through the records of the Housing Department, he is able to say that this accident of the Plaintiff was never reported to the Housing Department either by the Plaintiff or by the 1st Defendant.

35. The effect of the evidence from these four witnesses called by the 2nd Defendant is that the Housing Department has an elaborate and thorough system of screening and selecting suitable cleaning companies before it would award contracts to them for cleaning works in relation to properties owned by the 2nd Defendant. There are standard criteria laid down and they have to be strictly met by any cleaning companies who wish to be awarded such cleaning contracts. These cleaning contracts are renewed year to year and such renewals depend on the performance record of the cleaning company over the years. Once a contract is awarded to a cleaning company, it will have to strictly adhere to the cleaning requirements laid down by the Housing Department and will be subject to regular checks carried out by personnel of the Housing Department to see that such requirements are met.

36. Cheung Kwong Hung was one such personnel, being an Estate Assistant. One of his duties is to inspect the toilets of buildings to check whether the cleaning work done by the cleaners are properly carried out. From 1985 onwards, Block 1 of Cheung Sha Wan Factory Estate was one of the buildings for which he was responsible and the 3rd Defendant was subcontracted the works for the cleaning of the toilets there.

37. Mr. Cheung gave evidence that the cleaning workers of the 3rd Defendant would clean the toilets twice in a day, once at about 8.00 a.m. and again at 2.00 p.m. He would inspect the toilets in the Building shortly after it is cleaned and if he should find the floors still dirty or wet then he would notify the foreman of the 3rd Defendant to have the workers clean that particular toilet again.

38. He also gave evidence that the cleaning worker would use water to clean the floor of the toilet, sometimes detergent if necessary, and the water would drain into the drainage hole and the floor would dry up very quickly after cleaning. As far as he could remember there was not even one occasion when he detected water running across the floor of the toilets although there were times when the toilet floor appeared a bit wet.

39. The 3rd Defendant was not able to call the witness, Kan Kam Shing, it had intended to by reason of the fact that the witness cannot be located at the time of the trial. However hearsay notice was given and the witness statement was admitted into evidence on the understanding that the fact that the other parties were unable to cross examine him would be a matter that would affect the weight to be attached to his statement.

40. The relevant part of the statement of Kan Kam Shing is to the effect that he was responsible for cleaning the toilet, bathroom, staircases and corridors of the 4th floor, then the 3rd floor, 2nd, 1st and ground floor of the Building daily, in that order.

41. When cleaning the toilet, he would first sweep away the rubbish with a bamboo broom, then he would use a hose connected to a tap in the opposite bathroom to spray the toilet floor with water. After that he would use the bamboo broom to sweep the excess water into the drainage hole. It was his practice to sweep as much of the water into the drain and not allow any pool of water to reamain on the floor. He had never received any complaints about excessive water on the toilet floor and he had never been instructed by anyone to use a mop to dry the toilet floor after cleaning.

Expert Evidence

42. The Plaintiff called an expert, Dr. Alex Cheung, who holds a Master of Science degree from the University of Leeds in civil engineering and a Doctor of Science from Brighton University in commercial engineering.

43. He was asked to prepare a report on the condition of the floor surface of the 4th floor men's toilet of the Building. However when he attempted to visit the site in February 1995, the Building had already been demolished. The fourth floor toilets of Blocks 2, 3 and 4 of Cheung Sha Wan Factory Estate had, by then, been relaid with non-slip tiles.

44. Based on the photographs included in the report prepared by Infrascan (HK) Ltd. dated 23rd July 1991, he was able to say that the floor of the fourth floor toilet of the Building was of concrete with crushed granite with steel floated finish and he found the same type of flooring just outside the toilets of Blocks 2, 3 and 4. He therefore used such flooring upon which to carry out tests and stated in his report that "applying water to the surface of the steel floated concrete floor outside the toilets created a slippery condition particularly for hard rubber soled and leather soled shoes." Dr. Cheung also stated that slip resistance further reduced if detergent or grease was present on the surface. He also stated in his report that "the degree of any tendency to slip on wet steel floated concrete will depend upon the soles of the shoes worn" - that it was worse for leather or hard rubber, but soft rubber will also slip as well if such floor surface is wet.

45. In the witness box he explained that the three most common types of floated surface for concrete flooring are steel floated, wood floated and broom finish. Steel floated is where the concrete is where the plasterer smoothes over the concrete with a steel trowel. The finish is the smoothest of the three types. Wood floated is where a piece of wood is used to smooth out the concrete before it hardens and dries. The finish is not as smooth as steel finish because a piece of wood is not as smooth as a steel trowel in texture. Broom finish is where the concrete after it is laid is brushed over with a broom, usually a bamboo broom, so as to deliberately make lines across the surface of the concrete. This is usually done on roads or streets with a steep gradient so as to cater for a better slip resistance by users. Its finish is usually of a rough surface with lines going crosswise to the direction of walking.

46. In cross examination he agreed that in the late eighties most people preferred the steel floated finish for a concrete flooring because it is smooth and therefore gave a better appearance and is easy to clean. However, in his opinion, he believes that non-slip tiles should be the correct flooring for a toilet which is wet most of the times. He also added that in the eighties, people were not as safety conscious as they should have been.

47. He agreed in cross examination that there is no established standard to determine the degree of slipperiness for flooring and also agreed that steel floated finish of concrete floorings would not be slippery if dry. Finally he agreed with counsel that motion is a pre-requisite to slipping.

48. The 1st Defendant also called an expert, Christopher Stanley, a corporate member of the Institute of Concrete Technologists and an expert on concrete floor surface, to give evidence. He is the technical director of Infrascan (HK) Ltd. and it is the photograph in his report which Dr. Alex Cheung relied on to say that the flooring of the toilet on the fourth floor of the Building is a concrete steel floated flooring.

49. Mr. Stanley was able to inspect the flooring of the toilet on the fourth floor of the Building on 23rd July 1991. In his report, describing the kind of flooring it is, he states " after the concrete for the floor slab had been placed the surface had been trowled smooth with a steel plasterer's float".

50. He stated that the dry concrete surface of the floor at the time of examination did not appear to be more slippery than any of the other floor surface in the block and, in his opinion, the slip resistance was similar to that which might be encountered on an average pavement surface. He also stated that when water was used to wet the surface of the floor, very little change in the slip resistance was noted. He concluded that this floor surface is acceptable and no more slippery than what would be encountered on flat concrete surface generally in Hong Kong.

51. In his evidence he said that the advantage of a steel floated concrete floor surface is that it is easy to clean and that such floor surface are still used in most industrial buildings in Hong Kong today. He could not see any disadvantage of such a floor surface.

52. When cross examined by the Plaintiff's counsel, Mr. Stanley agreed that of the three most common types of finish for concrete flooring, steel floated ones are the most slippery, and it would be even more slippery if there was water on the floor surface. He also agreed that if such a surface was mopped dry, being merely damp with no water on it, then it would not be slippery. Lastly Mr. Stanley also agreed that hard rubber slippers would not be as slip resistant as soft rubber slippers when used on such a surface.

53. The 2nd Defendant also called an expert witness, Law Chi Ming, the Managing Consultant of Loss Control Engineering Ltd. which is an occupational safety management and consultancy service. He holds a Bachelor of Science degree in Marine Engineering and also a Master degree in Industrial Engineering Safety, both degrees from Texas A&M University. In the witness box, he frankly admitted that he was not an expert in concrete flooring but his expertise is in industrial safety management. On instructions he had prepared a report on the accident in question which report is dated 31st March 1996.

54. The conclusion which he came to in his report can be summarised as follows: Firstly it is very hard to determine the slipperiness of a floor. Secondly, it is not unreasonable to expect such a toilet in the Building to be wet, especially after it has been cleaned, and that it will be cleaned on a regular basis. Thirdly the exercise of normal care in walking slowly should be sufficient to prevent a person from slipping on such a floor, even when it is wet, however, the severity of the Plaintiff's injury indicates that if he had slipped then it was probably due to the fact that the soles of the Plaintiff's shoes had picked up some other slip agent like lubricating oil from the floor of the factory where the Plaintiff worked. Mr. Law therefore forms his opinion that the blame should be on the 1st Defendant for failing to clean the factory floor on a regular basis, failed to provide floor mats for the workers to clean their shoes, failed to provide non-skid footwear for their workers and failed to warn their workers of the risk of slipping which may be caused by lubricating oil in the factory. He also took the view that the 2nd Defendant had properly maintained the toilet where the accident happened and should be free from blame.

55. In cross examination he said that wax is also a slip agent and even in its solidified form it can still be picked up by the soles of shoes of someone walking over it. When asked about the relative slipperiness of the different types of finished of concrete flooring, he would not accept the proposition put to him by Mr. Chan for the Plaintiff that steel floated concrete was the most slippery of the different types of concrete flooring. The reason he gave was because there were so many types of concrete flooring. However, he agreed that a dry surface would be less slippery than a wet one.

56. He maintained that using a bamboo sweep to get rid of excess water from the toilet floor was the most efficient way of doing it. He disagreed that a mop is better because he says that a mop after it had been used becomes saturated with water and unless one had a number of dry mops, after a while, the mop loses its efficiency getting rid of excess water. On the other hand, a bamboo sweep does not absorb water and can therefore be effective in pushing the excess water into the drain hole. However, when questioned further, he admitted that he did not know the size of the sweep that was used, he did not know the size of the drain hole not did he know the amount of the 'fall' leading to the drain hole (i.e. the slope on the toilet floor sloping towards the drain hole).

Findings of Fact

57. In making my findings of facts, I have heard and seen the Plaintiff give his evidence and be cross examined in the witness box. I have formed the impression that he is a simple person, but honest and doing his best to tell the truth. He is not articulate in speech as can be seen by the fact that he wrongly called wax lubricating oil.

58. I find that on the morning of the 19th March 1987, at about 9.30 a.m. shortly after the toilet on the 4th floor of the Building had been cleaned, the Plaintiff went into the toilet intending to use it. The Plaintiff was wearing hard rubber slippers.

59. I also find that at the time there was a warning painted on the wall of the entrance to the toilet in Chinese to the effect that the floor of the toilet is wet and slippery and for people to take care. It may well be that because the Plaintiff have been using that toilet for so long and was so familiar with the area that he did not pay attention to the presence of the notice. I do not think he was lying when he said there was no such notice there. In any event in so far as the Plaintiff is concerned, he was well familiar with the condition of the toilet as he was, according to him, a regular user of the toilet just at about that time every morning. In the 10 years or so that he had been working there and using that toilet, he has come to know that the condition of the toilet floor to be wet, particularly after it had been cleaned at that time of the morning.

60. As to the condition of the floor of the toilet where the accident happened, I accept what is stated in the statement of Kan Kam Shing that the usual procedure is to use a bamboo broom to sweep any excess water into the drain hole after cleaning. I find that the floor was neverthless wet after it had been cleaned on the day of the accident. It did not have puddles of water in the middle of the floor. The reason I say this is that it is common grounds that there was a 'fall' of the floor towards the drain hole and in the normal course of events water would run along towards that drain hole and not collect as a puddle in the middle. However, I find that the floor was not as dry as it could have been had it been properly mopped dry. (When I use the word "mopped dry" it is not used in the sense that the 2nd Defendant's expert, Law Chi Ming, understands it. I use it in the sense that excess water from the mop would be squeezed out as and when necessary before it is used to mop the wet floor.) Although it did not have puddles of water, however, the toilet floor was, nevertheless, wet enough for someone to slip on.

61. I accept the evidence from the 2nd Defendant that there was no ventilator in this toilet. If anyone should know this they are the people to know. Normally users of toilets would take these matters for granted and not pay sufficient attention to such details. It follows therefore that the ventilation in this toilet is only provided by the louvre windows high up on three sides. I also accept the evidence of Ku Dip Lun that the toilet would only dry up naturally by about noon time each day. This is a further indication as to the degree of wetness which can be found daily in this toilet after it has been cleaned.

62. Furthermore, I accept the evidence of Dr. Cheung that steel floated concrete floor surface of the kind which this toilet floor is laid would in all probabilities be slippery when wet but not so when it is dry. This is quite clearly supported by the fact that those having the control and management of the Building have seen fit to put up a warning notice at the entrance to this toilet warning users to be careful because the toilet floor is wet and slippery. I also accept Dr. Cheung's evidence that when one is wearing shoes with soles made from hard rubber a wet floor of the kind found in this toilet would be that much more slippery than if one was wearing shoes the soles of which are of soft rubber.

63. I also find that whilst the cleaning works in respect of the toilets in the Building were sub-contracted to the 3rd Defendant, the 2nd Defendant had retained sufficient control over the toilets in the Building and regularly check on the work performed by the 3rd Defendant's cleaners in so far as the toilets are concerned.

64. Coming to the issue as to how the Plaintiff fell, much has been submitted by all the defendants that because the Plaintiff is unable to say that he in fact had slipped on the slippery floor of the toilet and fell, the circumstances of the case as revealed by the evidence points in the direction that the Plaintiff fell not because he slipped but for some other reason. The circumstances as submitted by the defendants are that the Plaintiff was found lying just outside the second compartment as one enters the toilet, his head and shoulders against the wall which was about 4 to 5 feet from the entrance to this compartment. At the time the Plaintiff's zipper was undone. It was contended by the defendants that the zipper being undone, it shows that the Plaintiff was either just about to urinate or had just finished urinating but before he had turned to walk away, in either case, he would not have been walking. This coupled with the evidence from all the experts that motion is a pre-requisite to slipping, it follows therefore that the Plaintiff must have fallen for a reason other than slipping.

65. Whilst I accept that motion is a pre-requisite to slipping, I am of the view that it only takes the slightest of motion to result in slipping if the condition of the floor is slippery, even one small step or an attempt to turn round would be sufficient. I am unable to draw the inference, as the defendants have urged me to, that the zipper of the Plaintiff being unzipped necessarily shows that the Plaintiff must have been standing completely still and not moving even in the slightest, not even turning round.

66. On the other hand when one looks at all the circumstances of this case, one finds the Plaintiff lying on the floor of this toilet semi conscious, moments before that Mr. Leung Yiu Chung heard a 'bang' in the same toilet, which is most likely the noise of the Plaintiff's head hitting against the wall behind him. The floor of this toilet wet enough to be slippery. No other evidence to suggest any other cause of the Plaintiff falling down. From all the circumstances, I can only come to the conclusion that more likely than not the Plaintiff had slipped and fallen on this wet and slippery floor. This I so find. I also find that the Plaintiff was wearing slippers the soles of which was made of hard rubber.

67. It must follow from my finding that I accept the Plaintiff's evidence that as a result of this accident and the injuries he sustained to his head, he has not been able to remember much of what happened at the time of the accident.

Liability

68. In the case of the 1st Defendant, as the employer he is under a statutory duty to provide "sufficient and suitable latrine" under regulation 37 of the Factories and Industrial Undertakings Regulations. The main purpose of these regulations are to ensure the safety and reasonable convenience and comfort of workers. Sub-paragraph (2) of that regulation provides that any latrine which does not comply with the provisions of the Building Ordinance (Cap.123) shall be deemed not to be sufficient and suitable for the purpose of this regulation. That, however, cannot detract from the fact that to be sufficient and suitable a latrine must also be reasonably safe. Neither is this a duty which the employer can delegate to others so that the 1st Defendant cannot be heard to say that since this toilet on the 4th floor is managed and controlled by the 2nd Defendant, his landlord, and cleaned by the 3rd Defendant, in those circumstances, it, the 1st Defendant is under no duty to ensure that the toilet is reasonably safe.

69. Moreover, the evidence shows that under Clause 3 (a) of the Tenancy Agreement between the 1st and 2nd Defendant which deals with the Landlord's obligations, the 2nd Defendant has an obligation to maintain, inter alia, the latrines in the Building. The evidence from the 2nd Defendant's witnesses are that if any reasonable complaints had been made to them by the 1st Defendant as to the condition of the toilets, it would have been looked into by them. However it is accepted by all including the 1st Defendant that the 1st Defendant has never made any such complaints to the 2nd Defendant regarding the wet and slippery condition in this toilet on the 4th floor of the Building. This was so despite the fact that from Leung Yiu Chung's evidence, both he and his father were personally aware of the wet conditions of the toilet on the 4th floor.

70. In the circumstances, I find that the 1st Defendant was in breach of statutory duty towards the Plaintiff in that it has failed to provide a reasonably safe toilet for use by the Plaintiff in the course of his work and that breach has resulted in the accident and injuries to the Plaintiff.

71. As for the 2nd Defendant, the claim against it is based on breach of duty under the Occupiers Liability Ordinance. The defence relied upon by the 2nd Defendant is that it does not admit to being the occupier in so far as the toilet in question is concerned. It further avers that the 3rd Defendant, being an independent contractor engaged to clean the toilet, and as such the 2nd Defendant is not liable for damages arising from the faulty execution of the cleaning works by the 3rd Defendant. Moreover, it is submitted by the 2nd Defendant that it had acted reasonably in entrusting the cleaning works of the Building to professional cleaners and who were selected by an elaborate selection system and after careful consideration.

72. After hearing all the evidence from the witnesses called by the 2nd Defendant and looking at all the standard criteria laid down by it for the selection of cleaning sub-contractors, I am left with the feeling that what the selection process aimed at were cleaners or cleaning company which had the ability, resources and finances to do the job of cleaning. There were little if any provisions laid down to ensure that the conditions of the toilets were to be reasonably safe for users after cleaning.

73. This was also reflected by the fact that the inspectors and estate managers who went round checking the toilets were concerned more with the toilets being clean rather than the aspect of safety of the users. That is the only explanation as to why Cheung Kwok Hung, the Estate Manager did not see fit to take any action when he saw at times the toilet floor appear to be a bit wet. Neither was anything done by the 2nd Defendant to ensure that the floor of these toilets including that on the 4th floor of the Building to be either mopped dry or dried to a degree that it would be reasonably safe for use and not slippery. This was so despite what Cheung Kwok Hung could see of the wet conditions of the toilets daily after it had been cleaned.

74. I find from the evidence that the 2nd Defendant had retained reasonable control of the toilet in question despite sub-contracting the cleaning works to the 3rd Defendant such that it was an occupier of the toilet on the 4th floor of the Building as understood in the Occupier's Liability Ordinance and its failure to take any action when it knew, through its inspectors, the wet and slippery condition in the toilet is a breach of its duty under the Ordinance.

75. Nor does the warning notice afford it a defence. This was a toilet that had to be used by the workers on the 4th floor even though its floor is wet and slippery and that must have been reasonably foreseeable to the 2nd Defendant as well as to the other defendants.

76. Lastly, in respect of the 3rd Defendant, it was instrumental in creating this wet and slippery floor in the toilet. It owed a duty to all those using the toilet each day including the Plaintiff and was in breach of that duty to the Plaintiff when it failed to dry off the floor so as to make it reasonably safe for the Plaintiff to use the toilet without having to run the risk of slipping.

77. In all the circumstances of this case, all three defendants are liable to the Plaintiff for the damages he has suffered arising from his slipping and falling in the toilet on the 4th floor of the Building.

Contributory Negligence

78. All the defendants have sought to rely on the defence of contributory negligence. Contributory negligence, unlike negligence, does not have to be any breach of duty by the Plaintiff. It merely involves careless conduct on his part such that he himself has contributed to his own injuries despite the initial breaches of duties being by the defendants.

79. In the present case, two matters point to contributory negligence by the Plaintiff. Firstly the Plaintiff's wearing of hard rubber slippers when going to the toilet and secondly his own evidence that when he was in the toilet he was walking as he normally walks. In this respect I accept the Plaintiff's evidence that he was not in a hurry when he went to the toilet on the morning of 19th March 1987. It may well be that as suggested by Mr. Chan for the Plaintiff that having been exposed for so long to this wet and slippery floor of this toilet, the Plaintiff's awareness of the need to take caution when using this toilet, with the condition that the floor was in, was somewhat blunted.

80. I have been referred to the case of Yu Shee Pui v Urban Council HCA 252 0f 1979 where the plaintiff sustained injuries in a fall inside a public lavatory managed by the defendant in a public market. The court there found that plaintiff, being aware that the floor was wet and slippery, was very cautious and walked very slowly on his way in towards the urinal trough but did not maintain same usual caution and was not walking slowly enough on his way out, whereby he slipped and fell and on that basis held the plaintiff 40% to blame.

81. I have been urged by Counsel for the 2nd Defendant to find the Plaintiff in the present case guilty of contributory negligence to an even higher degree in view of the fact that here, the Plaintiff was well aware of the toilet conditions for the past 10 years or so. However, I must also take into consideration the fact that when in the course of his work, the Plaintiff was almost bound to use this toilet rather than any other even though there may be other toilets on other floors of the Building.

82. I also take into consideration, having accepted the evidence from the experts that hard rubber soles would probably be more slippery on a wet concrete floor than soft ones, that the Plaintiff was doing much the same as anyone else including his own boss. Having said so, it nevertheless remains that the Plaintiff should have taken better care of himself when he had to go into the toilet on the 4th floor well knowing that the condition of the floor there was wet and slippery.

83. Having taken everything into consideration, I find that the Plaintiff was himself 40% to blame for his accident.

Contribution between defendants

84. The 1st Defendant has served notice on the 2nd and 3rd Defendants claiming contribution from them. Likewise the 2nd Defendant has also claimed contribution from the 3rd Defendant. By Section 4 of the Civil Liability (Contribution) Ordinance, I have to determine the amount of the contribution so claimed on the basis of what is "just and equitable having regard to the extent of that person's responsibility for the damage in question.

85. I have already found each of the three defendants to be liable to the Plaintiff on the basis which I have set out above. Each had a duty to the Plaintiff and each was in breach of that duty. Although the 3rd Defendant was instrumental in creating, through its cleaners, the wet and slippery floor, the 1st and 2nd Defendants were both in the position to have done something about it with knowledge of the wet and slippery conditions so created but each did nothing about it.

86. In all the circumstances of this case, the fairest apportionment of the contribution for liability in respect of the defendants can only be that all three of them are equally to blame in the absence of any particular matter which would clearly indicate that one of them should be more to blame than another.

Quantum

87. At the outset of this case, I was informed by all parties that quantum is not in issue as the parties have been able to agree quantum which of course is subject to the decision on liability. The parties have informed me that the agreed quantum is a global sum of HK$1 million. This figure was agreed at just shortly before the trial started and is at the time of agreement meant to include interests up to that point in time. However, for obvious reasons, since liability has to be determined, I was informed that the amount of employees compensation already paid to the Plaintiff in the sum of HK$117,387.38 will have to be deducted from the final figure after liability is determined.

88. Accordingly, as I have found the Plaintiff to be 40% to blame, the Plaintiff will only be entitled to HK$600,000.00 based on the amount of the agreed quantum. From this sum will be deducted the amount of the employees compensation paid leaving the final sum of HK$482,612.62.

Conclusion

89. I shall give judgment to the Plaintiff against all three defendants in the sum of HK$482,612.62. There will be the usual costs order nisi that the Plaintiff be awarded costs of the action against all three defendants to be taxed failing agreement. I have already apportioned liability between the three defendants to be equal between all three and that is a matter that I can leave to the defendants or their solicitors to sort out between themselves.

Representation:

Anthony Chan inst by M/s Robin Bridge & John Liu for Plaintiff

Alan Ng inst by M/s Tsang Chan & Wong for 1st Defendant

Alfred Liang inst by M/s Simmons & Simmons for 2nd Defendant

Nigel Bedford inst by M/s Chan & Kong for 3rd Defendant