Lam Ka Lok Louis v. Swire Properties Management Ltd

HCPI 914/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.914 OF 2003

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BETWEEN

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Before : Hon Suffiad J in Court

Dates of Hearing : 7 and 10 January 2005

Date of Judgment : 30 April 2005

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J U D G M E N T

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1.The plaintiff claims damages for personal injuries sustained by him when he was at work on 31 August 2000.  The claim is brought against the defendant, being his employer at the time of the accident complained of.

2.I am concerned only with the issue of liability, since there was an earlier order for split trial of this matter made at the Checklist Review hearing.

3.The plaintiff was employed by the defendant as a qualified suspended platform worker since February 1997.  The work of the plaintiff consisted of cleaning windows on the exterior walls of buildings while being suspended on the outside of the building in a gondola.

4.At the time of this accident, he was employed by the defendant to clean the windows on the exterior wall of the Marriott Hotel.

5.On the morning of 31 August 2000, he reported to work at the usual time of 8:45 a.m.  Having reported to the management office, he proceeded to the rooftop of the hotel together with his co-worker by the name of Wong Kui Cheung.  The gondola used by the plaintiff and Wong for their work was parked on the rooftop of that hotel.

6.Before obtaining the necessary clearance from the engineering department to use the gondola for that day, the plaintiff and Wong had to carry out certain preparatory work.  This included emptying a 15-litre bucket which had been left in the gondola after they had finished work the previous evening.  The bucket contained some water left behind after their cleaning work the previous day.

7.It is the plaintiff’s case that when he checked the door which gives access to the gondola, he found that the door was stuck in its closed position, resulting in his not being able to open the door to the gondola.  In the circumstances, he could only lean over the surrounding railing of the gondola, which was about waist high in order to retrieve the bucket half full of water left behind from the previous day’s work with the intention of disposing of the dirty water and refilling the bucket with fresh water.

8.When he was leaning over the railing of the gondola and in the process of lifting the bucket out off the gondola, he sprained his lower back resulting in pain to his lumbar region, his waist and also to his buttocks.  Initially, the pain was slight, but when he continued in his attempt to lift the bucket out off the gondola, the pain became acute.  As a result, the plaintiff dropped the bucket back into the gondola.  The severity of the pain was such that the plaintiff could not continue with this work.  He then informed his co-worker that he had injured his back when lifting the bucket from the gondola and that he had to seek medical advice.

9.The plaintiff also telephoned his superior by the name of Yuen Hoi to notify him that the plaintiff had sustained an injury to his back and had to go off to seek medical treatment. 

10.In so far as the claim against the defendant is concerned, the plaintiff’s case is put on the footing that the defendant, as an employer, was negligent in failing to provide the proper or adequate equipment to the plaintiff for this work in that the door to the gondola was defective, thereby causing the accident to the plaintiff.

11.The plaintiff’s case is also put on the footing that the accident came about as a result of an unsafe system of work by the defendant, the unsafe system being that no proper instructions had been given to the plaintiff as to how to properly dispose of the dirty water left in the bucket from the previous day.

Finding of Facts

12.By its defence, the defendant has put in issue as to whether the accident happened in the way described by the plaintiff.  This is so despite the fact that no one else other than the plaintiff witnessed the accident.

13.Although two witnesses were called by the defendant, neither of them were able to say how that accident happened.

14.Wong Kui Cheung gave evidence that while he was on the roof of the Marriott Hotel that morning of the accident, the plaintiff suddenly came over to where he was and told him that he, the plaintiff, was “feeling unwell” and had to go off to consult a doctor.

15.The other witness called by the defendant, Yuen Hoi, the foreman of the defendant and immediate superior of the plaintiff at the time, gave evidence that he only learned from Wong, when he called Wong at about 10 a.m. that morning of the accident, that the plaintiff was feeling unwell and had gone off for medical consultation.  When he then called the plaintiff on the plaintiff’s mobile phone, he was told by the plaintiff that he (the plaintiff) needed to consult a doctor.  It was only later that day that the plaintiff informed Yuen that the plaintiff had gone to the Accident and Emergency Department of a hospital.

16.From this evidence adduced by the defendant, I am asked to infer that no such accident happened to the plaintiff as described by the plaintiff.

17.The only other piece of evidence which cast any light on this matter is the Form 2 dated 14 September filed by the defendant with the Labour Department which states the accident to be when the plaintiff was lifting up a bucket of water, he sprained his back.

18.I have no hesitation in accepting the evidence of the plaintiff as to how the accident happened in the absence of any direct evidence to contradict it.

19.I reject the evidence of both defence witnesses.  I have no doubt that they had not told the entire truth to the court.

20.In the case of Wong, when the plaintiff told him he was feeling unwell and had to consult a doctor, Wong’s evidence was that he reminded the plaintiff to notify the officer-in-charge and yet he did not even ask the plaintiff what was the matter with the plaintiff.

21.In the case of Yuen, when he learned from Wong that the plaintiff had gone off for medical consultation, he called the plaintiff on the plaintiff’s mobile phone but did not even bother to ask the plaintiff what was wrong.

22.I therefore find that the accident happened in the way described by the plaintiff.

Liability

23.Having found that the evidence happened in the way described by the plaintiff, I have also come to the conclusion that the plaintiff has failed to prove any negligence on the part of the defendant for the injuries sustained by the plaintiff for the following reasons.

(1)     Unsafe system of work

24.The first basis upon which the plaintiff makes this claim is that there was an unsafe system of work of the defendant which caused his injuries.  The unsafe system of work was the defective door to the gondola which had jammed and could not be opened.

25.Firstly, it must be clear from the plaintiff’s own evidence that the jammed door of the gondola was not something which the defendant knew or ought to have known of.

26.There was no indication the night before when the plaintiff and his co-worker finished work on this gondola that the door had jammed since the plaintiff only discovered the jammed door on the morning of the accident.  Therefore that could not have been something which the defendant knew at the time of the accident, or ought to have known of.

27.Secondly, it is clear from the evidence of the plaintiff that when the accident happened, the gondola in question was still parked at the rooftop of the Marriott Hotel and had not yet been put into operation as yet since both the plaintiff and his co-worker had to wait for engineers of the defendant to check out the engine and the machinery of the gondola to be in good working order before they could obtain the necessary clearance to use and operate the gondola that day.  This accident happened before the engineers had come along to check out the proper operation of the gondola.

28.Thirdly, it is common ground that the defendant has a system in place whereby the defendant’s engineers had to check out and give the necessary clearance that the gondola is in proper working order each day before a gondola can be put into operation.  In the circumstances, it was open to the plaintiff to wait for the engineers to come on to the roof for the checking of the proper operation of the gondola and to report to them about the jammed door.  The plaintiff did not do so but took it upon himself to try to retrieve the bucket with the dirty water in it in the way he had described leading to his spraining his back.

29.A further option open to the plaintiff was to climb over the railing of the gondola (which was only waist high) to get inside the gondola and to seek assistance from his co-worker Wong who was also on the roof to assist him in removing the bucket of dirty water from inside the gondola.  This the plaintiff also did not do.

30.The evidence of the plaintiff was that the bucket of water in the gondola which he intended to remove that morning was about half full.  The bucket is a 15-litre bucket.  It follows that such a bucket, half full of water, would weigh about 16 or 17 lbs.  The removal of such a bucket of water from inside a gondola cannot, by any stretch of the imagination, be described as work of a hazardous nature or work which should involve any risk.  In those circumstances, I cannot see that the defendant is under a duty to devise a safe system for such kind of work (i.e. removal of buckets of dirty water from inside a gondola) when there is already a system devised by the defendant to ensure that the use of and the operation of a gondola is safe before such gondola may be used or operated by its workers.

31.Moreover, the fact that the door to the gondola jammed and cannot be opened cannot per se be evidence of negligence by the defendant.  Machinery do become defective form time to time.  Negligence arises from the use of or permitting the use of such defective machinery with knowledge of its defect on the part of an employer.  In this case, nothing even remotely suggests that the defendant either knew or ought to have known of such defect.  Indeed everything points in the opposite direction.

32.For these reasons, I do not find that there was an unsafe system of work by the defendant such that they should be liable to the plaintiff for the injuries sustained by him in the way that the accident happened.

(2)     Lack of training, instructions etc.

33.The second basis upon which the plaintiff’s case is put is that there was no or insufficient instructions or training and/or no safe method provided by the defendant to the plaintiff as to how to properly dispose of buckets of dirty water from the gondola.

34.The evidence shows that the plaintiff has worked as a cleaning worker on a gondola even before he joined the defendant in February 1997, having obtained his qualifications as a gondola worker in August 1996.  He was therefore no stranger to working on a gondola.

35.The evidence also shows that at the time of accident, he was using a normal 15-litre bucket and when the accident happened, and was intending to dispose of the dirty water left in that bucket which was about half full.

36.The unchallenged evidence was that a 15-litre bucket filled completely with water would weigh about 33 lbs.  It follows that a half full bucket would be about 16 or 17 lbs.

37.There is therefore no evidence in the present case that the weight of the bucket containing the dirty water to be disposed of can, by any standard, be said to be excessive.

38.Disposal of dirty water from such a bucket must be an everyday occurrence for a worker such as the plaintiff.  It is not work which entail any special risk or can be said to be of a hazardous nature such that an employer is under a duty to implement a safe method or to provide specific instructions or training to its workers failing which it would be negligent to that worker.

39.The law does not require an employer to treat its workers, in the carrying out of their everyday normal jobs which do not entail any special risk or danger by the workers, as though they were kindergarten pupils who if not told, would not be aware of the kind of common everyday risks that a reasonable person should be aware of.

40.In all the circumstances of this case, I am not persuaded that the defendant was under any duty to have to give any specific instructions or training or to implement a safe method whereby the plaintiff would know how to properly dispose of dirty water in a 15-litre bucket half full.

41.I simply do not accept that the defendant could be found negligent for this alleged failure.

(3)     Breach of statutory duty

42.The breach of statutory duty relied on by the plaintiff is that provided for under section 6(1) and 6(2)(a) of the Occupational Safety and Health Ordinance, Cap. 509, namely, that the defendant failed, so far as reasonably practicable, to ensure the safety and health at work of the plaintiff in failing to provide or maintain plant and system of work that were, so far as reasonably practicable, safe.

43.The factual basis for the alleged breach of statutory duty is the same as already dealt with above in this judgment.

44.For the same reasons given above, I do not find that there was any breach of statutory duty by the defendant.

(4)     Foreseeability

45.Since the evidence from the plaintiff was that he only came to know himself of the jammed door of the gondola that very morning of the accident, there is therefore no evidence that the defendant knew of the jammed door or that the defendant ought to have known of it.

46.The defendant already has in place a detailed and well-implemented system to ensure the proper and safe operation of the gondola in that each gondola had to be checked and given the necessary clearance by the defendant’s engineers each day before it could be put into operation by the workers.

47.The question to be asked in this case is what more could the defendant be reasonably expected to have done to prevent this accident from happening.

48.Given the circumstances of this case leading to the happening of this accident to the plaintiff, the answer to the above question must be that there was nothing which the defendant could reasonably have done to prevent this accident from happening because the risk of a serious injury being suffered by the plaintiff in this manner was totally unforeseeable to the defendant.

Conclusion

49.For the above reasons, I find that the plaintiff has failed to establish any negligence or breach of statutory duty on the part of the defendant for this accident leading to the injuries suffered by him.

50.The plaintiff’s claim on liability is accordingly dismissed with costs (order nisi) to the defendant to be taxed if not agreed.  The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

Mr Nigel De Boinville, instructed by Messrs Henry Lam & Associates, for the Plaintiff

Mr Colin J. Wright, instructed by Messrs Deacons, for the Defendant