Wu Chu v. John Lok and Partners Ltd

HCA000414/1979

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Coram: Liu, J. in court.

Date of Judgment: 23rd December, 1980

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JUDGMENT

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1. On the 30th November, 1977, one YU Hing-cheong, then 17 years old fell to his death from a height of 8/9 storeys in Block 98, in Phase 8 of the defendant's Mei Foo Sun Tsuen project. The defendant was the main contractor.

2. Scaffolding around the structures on the building site was subcontracted to a firm called Tang Sang Kee. Scaffolding was completed before November, 1977. In the course of his evidence, Mr. CHAN Sing-chuen (DW2), an employee of the scaffolding firm of some thirty years' standing, made a brief reference to a further scaffolding for finishing work on the walls in between the original scaffolding and the exterior of the buildings. There was no clear evidence as to which of the scaffoldings was in issue. However, the scaffolding involved must have been completed before the fatal accident on the 30th November, 1977. According to Mr. CHAN Sing-chuen, after completion he was left behind presumably as representative of Tang Sang Kee to inspect and, if necessary, maintain the scaffolding, but Mr. Chan informed the court that any major maintenance would be the responsibility of the defendant company. As for inspections, two were made every week, and Mr. Chan would spend approximately twenty minutes on each block i.e. five minutes approximately per side. He would survey the entire scaffoldings on any one side from the ground level looking up and then he would ascend to the top of the building and scan the scaffoldings from above.

3. Paving of the mosaic tiles on the exterior of the buildings in this project was subcontracted by the defendant company to YEUNG Wan-kee. At one time during the course of the proceedings, it was suggested that the deceased's father, Mr. YU Pui, was himself an independent contractor of YEUNG Wan-kee, but finally it was not seriously disputed and I so find that Mr. YU Pui was some workers' representative for collecting and signing for the wages and in overall charge of the masons hired by him on behalf of YEUNG Wan-kee. The deceased was a member of the team of masons so hired by his father, Mr. YU Pui, for patching up or giving a finishing-touch to the mosaic tiles on the exterior.

4. Evidence taken sectionally has, perhaps understandably, presented not inconsiderable difficulty. But when one stands back and takes a perspective view of the mass of evidence, uncertainties are readily dissipated. Four masons on the job were called by the plaintiff who is the surviving mother of the deceased. The deceased's father was one of these masons, and he worked on another portion away from where the deceased fell to his death. With the deceased's father was the mason SIT Wing-yu (PW6). The brother of SIT Wing-yu is SIT Wing-cheung (PW5), and he was with the deceased at the time of the accident. CHAN Sun (PW4) was another mason who worked on the same floor as that of the deceased but at a distance and with his view obstructed. If indeed, these masons had minded or conspired to come to court to fabricate evidence, they could easily have chosen to make more direct allegations.

5. Occasionally, there was some display of partiality and exaggeration in favour of the plaintiff. SIT Wing-yu (PW6), for one was guilty of both. He told the court that around the area of the deceased's fall, subsequently there was a wholly new set of scaffolding erected with new poles refastened. He seemed to have overlooked reality, but he did give a qualifying statement that whatever needed to be replaced had been replaced. SIT Wing-yu would have the court believe that his brother SIT Wing-cheung dutifully wore a helmet on site, not knowing that his brother had earlier affirmed to the contrary. SIT Wing-yu was decidedly confused as to whether he accompanied Mr. YU Pui for the worship at the scene after his friend's death or whether he returned himself to the scene after funeral services. I can place no reliance on his evidence including his allegations that scaffolding in his assigned area was in a bad state of repair and that some two months before the accident he had complained to Mr. KWAN Yiu-fu (DW4) the responsible person in YEUNG Wan-kee and Mr. Hui of the defendant company.

6. The deceased's father Mr. Yu Pui was emotional and in grief on his return to the scene on the 1st December, 1977 after the deceased's death. Mr. Yu complained that his view of the upper floors was then obscured by newly installed extra planks, but he maintained that the scaffolding seemed to have been entirely changed with some bamboos rebound and reinforced. I do not feel completely at ease with his version as to what happened on his return to the scene of the accident. He was then certainly not stable enough to make reliable observations. Mr. YU Pui further testified that he had complained of the general unsafe condition of the bamboo scaffoldings in his assigned area which included his son's to Mr. KWAN Yiu-fu of YEUNG Wan-kee, the masonry subcontractor several times and as late as a week before the accident. Mr. Yu claimed to have similarly complained to Mr. Hui of the defendant company on his inspection tour. His narrative of events prior to the accident was given without undue embellishment.

7. SIT Wing-cheung (PW5) was the mason working with the deceased on that fateful afternoon on the 30th November, 1977. He told the court that after lunch at about 2 p.m. on his return to work with the deceased, he had first gone onto the scaffolding with his back to the deceased. Then, he heard some sound as if the deceased was getting out from the building to the scaffolding. He heard a noise "Pak". He turned and saw the deceased on his way down and a bamboo detached at one end hanging loose. Thereupon, he ran down to the ground level and subsequently accompanied the deceased in an ambulance to hospital. He testified that eventually when he returned to the work-place, he found a new bamboo installed and that he reported the broken bamboo to persons wearing helmets with English letters, who he assumed to be site foremen. SIT Wing-cheung added that the bamboo poles looked rotten and so were the fastenings which were "to the point of being brittle". He conceded to have given a statement at a police station, but he denied having ever met Inspector Tso.

8. Inspector Tso (DW1) told the court that he went to the scene on the 3rd December, 1977 and interviewed only one by the name of SIT Wing-cheung and no other. Later in his evidence, the inspector said that he spoke to other workmen whose statements as to the cause of the accident were, however discarded. He claimed to have been escorted on the site by foreman Hui of the defendant company. But according to Mr. WONG Tat-ting, the defendant's site manager, it was one Mr. LAM Hung-choi who took the Labour Department officer to the scene of the accident. Inspector Tso did not preserve any of the notes he had allegedly taken, but only on the main points. There seems to be some confusion as to the identity of the staff who guided the inspector to the scene, and the inspector's evidence on the name of an alleged interviewee is equally suspect. The inspector's original evidence was that he interviewed only SIT Wing-cheung, thus leaving the court with the distinct impression that the absence of any reference to a detached pole in his report was the responsibility of SIT Wing-cheung. Then he testified that he had in fact interviewed more than one workman at the site, and he attempted to qualify his evidence ultimately by stating that for the relevant passages, he relied solely on the information supplied by SIT Wing-cheung. I doubt if he did in fact interview SIT Wing-cheung. Apart from this state of the evidence of the inspector, I was quite impressed by SIT Wing-cheung's denial of having at all met the inspector. SIT Wing-cheung seemed to sound unsure when he was first taxed on the alleged interview, but when his memory was jogged by details, he gave a stern denial with the usual disdain so often accompanying utter disagreement from this section of the community. Furthermore, Inspector Tso agreed that what appeared in his report was not inconsistent with the plain information that at the time when the deceased was first seen falling, the observer was not then in a position to judge the cause of his fall. The inspector was also driven to concede that he was unsure if the interviewee said anything outside his report.

9. CHAN Sun (PW4) was another mason called by the plaintiff. He worked on the same floor as the deceased. There was some commotion, and later he was told by a brick-carrier that a workman had fallen from a height. His view of that area where the workman fell was obstructed. He walked through a corridor to the other side of the building, but he did not see the injured workman down below. There was a portable radio and there were tools in such quantity as would suggest that parts thereof had been taken out by a workman to the scaffolding. He found one bamboo pole missing. Much criticism was directed at the difference in the evidence of CHAN Sun (PW4) and SIT Wing-cheung (PW5). The former described a pole as missing and the latter a pole dangling down with one end detached. But it need be remembered that these two masons were describing the situation at different times. When CHAN Sun made his observation the injured workman was no longer lying on the ground level. He had been taken away by ambulance. In cross-examination, CHAN Sun supplemented his evidence with the information that there were broken pieces of bamboo straps. Much play was made on this added information, but I do not share counsel's suspicion. CHAN Sun was fair enough to concede that he had no recollection as to the precise condition but that there was at least one pole missing. In particular, when I was unclear as to the precise location from where he made his observation near the portable radio and tools, without any hesitation or much thought his answer to the court was: "From the spot where the bamboo pole had come off." This mason like the others, has little polish and has demonstrated his inability to fix his attention on any given subject. He was not directly guided back to the subject-matter of the missing pole, but in giving his position he unhesitantly referred back to the missing bamboo.

10. One striking feature which stands out against the defence evidence is that no witnesses could offer any assistance as to the state of the scaffolding immediately after the fatal fall. CHAN Sing-chuen (DW2) from the scaffolding firm made his appearance at the scene conveniently only at 5 o'clock, some three hours after the accident. Bearing in mind the evidence of the site manager Mr. WONG Tat-ting (DW3) that he had to virtually disperse the curious crowd and drive them back to work after the accident, it is inconceivable that Mr. Chan's inspection could be legitimately delayed for three hours after the accident. According to him, at around 5 o'clock in the afternoon he only came into that information through a casual worker and only by chance. If he was telling the truth, as he was the man whose duty was inspection and maintenance, there must have been a total lack of co-ordination and supervision on the part of the defendant company. Mr. WONG Tat-ting (DW3), the defendant's site manager came to the scene almost immediately thereafter, but he claimed to have no idea then where the deceased fell from. This would, of course, excuse him from being more inquisitive, particularly from the vital floor. He also claimed to have confined his inspection tour to the ground level. However on the following day, he caused to be taken photographs (including the area from where the deceased fell) which were not produced. Mr. KWAN Yiu-fu (DW4) of the masonry subcontractor, arrived at the 8th floor immediately after the accident. He told the court that he was duty-bound to survey the situation. He did look from the 8th floor at the scaffoldings, but sadly he did not remember clearly what he saw. He maintained that his recollection of the then circumstances was rather blurred. He certainly appeared to have much to conceal, but following that prologue he proceeded to testify, under counsel's competent guidance, that he made no report of any unusual circumstances and that if he had discovered any damage to the scaffolding, he would have made a report. Immediately thereafter, he was asked:

I find the evidence adduced by the defendant disturbing.

11. When SIT Wing-cheung (PW5) was requested to suggest the probable cause of the accident, he surmised that the deceased must have stepped on the bamboo pole which became unexpectedly detached at one end. The detached and subsequently missing bamboo pole must therefore have been somewhere on the foot level of the deceased on his way out to the scaffolding. If that bamboo pole succumbed to the weight of the deceased, the straps or fastenings must have been defective. While falling through the gap between this scaffolding and the exterior of the building, if indeed the deceased had then grabbed the bamboo pole, the fall of the deceased could not have gathered sufficient momentum, and therefore the pole grabbed by the deceased on his way down (if giving way to his weight) must also have been defective.

12. There was a two-foot gap between the exterior of the building and the bamboo scaffolding. In the report of Inspector Tso, he included a recommendation for gangway installation, said to have emanated from his senior officer with whom Inspector Tso would not entirely agree. Inspector Tso explained that crossing a two-foot gap to the scaffolding was no more hazardous than free movements on the scaffolding shifting to a new work-place just before actually securing oneself to an anchorage point or life line. Moreover, the suggested gangways may prove to be too heavy a burden on the scaffoldings. Inspector Tso was of the opinion that safety-belt was the real solution.

13. Therefore, if without more the deceased had negligently fallen through the two-foot gap between the exterior of the building and the scaffoldings which is part of the known hazards for workers on scaffoldings, in my view, the defendant would not have been liable. On the other hand, if the deceased had grabbed a pole which became detached at one end during his own negligent fall to the ground, he as well as the defendant would have been guilty of contributory negligence.

14. The deceased was just coming back to work after lunch at 2 p.m. He was about to walk out from the building to the scaffolding. There was no evidence that he was then otherwise than alert and competent as any ordinary worker. If he had not properly stepped on the scaffolding which came loose, he must have been in a position to grab that bamboo pole in his fall. But the sequence described by SIT Wing-cheung is consistent with a bamboo pole giving way under the deceased without warning. It is improbable that the cracking noise "PAK" could have followed so closely if the deceased had fallen through any gap initially. There is no satisfactory evidence from the defendant to suggest the contrary. On the balance of probability, I find that the deceased did secure a good foothold on the bamboo pole which became detached. On the evidence of Mr. YU Pui and SIT Wing-cheung, I further find that the scaffoldings including the portion from which the deceased fell to his death were generally in a poor state of repair and defective and that complaints had, prior to the accident, been made to as well the masonry subcontractor as the defendant company.

15. I turn next to examine closely the issue of the safety-belts which was thoroughly canvassed during the course of the trial. It is a fact that at the time of the accident in 1977, workers on scaffoldings never used safety-belts. None has had the experience of having seen a worker on scaffoldings with a safety-belt. This time-honoured modus operandi will, perhaps, one day be modified. I am not prepared to and simply would not accept the allegations made on behalf of the defendant that sufficient effort had been made to instruct workers on scaffoldings to put on safety-belts or that they had been repeatedly warned for not using them. The practice of free movements on scaffoldings has been so deep-rooted and jealously guarded that any serious reminder would have been subjected to scorn and ridicule.

16. Inspector Tso (DW1) told us that although in 1977 the use of safety-belts was recommended, no workers on scaffoldings would ever oblige. The inspector would himself recommend the use of safety-belts which must be tied to a secured enchorage or life line. The inspector described an anchorage point as a vertical member of window-frame and the like but declined to include any part of the scaffoldings. He was of the opinion that there was no secured anchorage available on the defendant's construction site in 1977. No life line was provided by the defendant compnay. Mr. WONG Tat-ting (DW3), the defendant's site manager referred to some safety-belts as belonging to YEUNG Wan-kee, the masonry sub-subcontractor, being kept in their own store-room. He told the court that if the masonry sub-subcontractor failed to provide any or sufficient safety-belts to the masons working on scaffoldings, the defendant company would make up the deficiency. He further claimed that YEUNG Wan-kee requested safety-belts from Mr. LAM Hung-choi of the defendant company and that safety-belts were issued against receipts and entries in the defendant company's ledger. Mr. LAM Hung-choi would allegedly instruct the sub-subcontractors as to the need for safety-belts, and he had personally reminded Mr. KWAN Yiu-fu of YEUNG Wan-kee that safety-belts had to be worn. Mr. LAM Hung-choi was not called. Ledger of the defendant company was not produced. Receipts were allegedly no longer available for inspection. No one has ever seen masonry workers on scaffoldings wearing safety-belts in Hong Kong. From the tenor of the workers' evidence, even at present it would be almost farcical, though technically desirable, to seriously suggest an imminent change of the age-old practice of uninhibited movement on scaffoldings in Hong Kong, yet Mr. Wong, the defendant's site manager, and Mr. Kwan, the foreman of the masonry sub-subcontractor, solemnly declared that they had constantly reminded workers to use safety-belts. However, both Mr. Wong and Mr. Kwan agreed that the use of safety-belts in conjunction even with a life line on the site would not eliminate the danger of a worker stepping out onto the scaffoldings initially. The fatal accident in this case occurred at that very point of time, and "safety-belts" cannot therefore be a real issue.

17. Mr. Kwan gave confirmatory evidence that he drew out safety-belts from the defendant company. Mr. Pak (DW5), the defendant's store-keeper told the court that the records of the store-room were lost, but he corrected himself later that such records were discarded. He claimed that belts were issued to the sub-subcontractor for masonry works, but he added that they were not returned because once issued, the belts were considered to be items written-off. Further pressed, he came up with the information that four belts were issued to Mr. Kwan of the sub-subcontractor for masonry work. We know that there were at least five workers on scaffoldings, the deceased, his father, the two Sit brothers and CHAN Sun not hired by Mr. YU Pui. The evidence of Mr. Pak (DW5) is equally unimpressive. I find that there was no belt either provided by YU Pui or issued by the sub-subcontractor for masonry work, YEUNG Wan-kee, or the defendant company.

18. In 1977, workers on scaffoldings would not use safety-belts even if available, but what seems to be more relevant is that safety-belts, even if issued and intended to be used by such workers, could not have been secured to any anchorage point or life line. Furthermore, the use of safety-belts would not eliminate the usual hazards on the workers first stepping out onto the scaffoldings. Non-user or failure to use any safety-belts in this case cannot, in my view, constitute contributory negligence on the part of the deceased. In fact, as I have mentioned earlier, the issue of "safety belts" does not appear to be altogether relevant.

19. The Occupiers' Liability Ordinance imposed on the defendant company in 1977 a duty to take such care as, in all the circumstances of the case, was reasonable to ensure that a visitor would be reasonably safe in using its premises. In the case of faulty execution of work, maintenance or repair by an independent contractor engaged by an occupier, regard must, inter alia, be had to whether in all the circumstances he has acted reasonably in entrusting the work to an independent contractor and taken such reasonable steps to satisfy himself that the contractor was competent and that the work had been properly executed. I have found that a bamboo pole gave way under the deceased thus causing his fatal fall. The straps or fastenings must therefore be defective. CHAN Sing-chuen (DW2) was to remain and be responsible for maintenance inspection on the defendant's construction site after completion of the scaffoldings. I have described the frequency and the manner of his weekly visits. The mode of such inspections left much to be desired. Besides, it was somewhat imprudent to rely on the same firm responsible for the erection of the scaffoldings to inspect the same for minor repairs, when minor repairs if detected were to be put right by the same scaffolding firm at their own expense. Independent inspection should have been arranged. In any case, the defendant ought to have supervised such inspection so as to ensure at least that ample time would be allowed for each inspection and a satisfactory inspection routine devised. There is no evidence that the defendant company ever endeavoured to satisfy itself that inspection was properly carried out. In the circumstances, the defendant failed to ensure that the scaffolding on which the deceased worked was properly and/or adequately secured, failed to properly inspect and/or examine the same and failed to provide a reasonably safe work-place for the deceased. The defendant was further negligent in permitting the said sacffolding to become and remain in an unsafe condition. The defendant failed also to discharge his statutory duty under the Occupiers' Liability Ordinance on the facts found in this case.

20. There was, for the reasons given, no contributory negligence.

21. The quantum of damages is not a matter of great controversy. The deceased was 17, in good health and had a close and happy family relationship. He had two brothers then 14 and 16 respectively. The elder of his two younger brothers has failed on University Entrance Examination and will sit again in the near future. The younger brother is now in Form VI. The deceased worked as a mason since July, 1976, at $75 a day, six days a week, earning approximately $1,950 a month. He contributed $1,000 for household expenses and gave about $500 or $600 per month to his 67 years old grandmother.

22. The seven years' purchase suggested for the grandmother seems reasonable. The two brothers would require his subsidy for some seven more years as from 1977 i.e. four more years from today. In four more years, the elder of his two younger brothers will be 23 and the deceased's youngest brother will be 21. Seven years' purchase for the two brothers again does not seem to be unreasonable. Having had good relationship with the family, the deceased would not have discontinued making contributions to his mother. In my view, his contribution to the household expenses after seven years would have been reduced to $600. When the two brothers become independent, they will be in a position to make their own contributions, but in my view the deceased would not have likely ceased making his own sizeable contribution. For the deceased's contribution towards family expenditure, I would deduct a rough figure of $200 for his own benefit. The plaintiff no longer pursues the claim for funeral expenses in the sum of $6,700. As for the maintenance of the grandmother, I accept that the deceased maintained her at an average rate of $500 a month. For easier calculation, I would put the duration from death to the date of judgment at three years.

Interest rates have fluctuated unrealistically in recent years. It was felt that short term interest rate should be taken as 10% per annum, and on the principle of Cookson v. Knowles⁽¹⁾, I would allow 5% per annum from death to the date of judgment for items (1)(a) and (2)(a). There will be no interest on future loss from the date of the writ to judgment. At the present high rate of interest, the judgment debt (except interest) is to carry interest at 13% per annum from to-day until payment.

23. Subject to confirmation by counsel of the calculations, the total damages would be $142,800. Deducting $60,000 by way of Workmen's Compensation already paid, that would leave $82,800. On the 11th April, 1978, an award for Workmen's Compensation was made by consent. There is no evidence when such award was paid, but some allowance ought to be given for interest accrued on the $60,000 Workmen's Compensation. This matter will have to be dealt with on further submissions by counsel.

24. I am informed that the parties reach agreement for 5% interest per annum on half of the $28,800 but all of the $18,000. Judgment is therefore given for the plaintiff against the defendant in the sum of $82,800 with costs to be taxed in accordance with Legal Aid Regulations, and with interest on $32,400 thereof at 5% per annum from the date of death to to-day. The judgment debt (excluding interest) is to carry interest at 13% per annum from to-day until actual payment.

Representation:

Mr. Mumford instructed by Lau, Wong & Chan & Co. for plaintiff.

Mr. John Bleach instructed by Munro & Co. for defendant.

(1) [1978] 2 W. L. R. 970