Lam King Tong v. Kam Hung Construction (Holdings) Ltd and Another

CACV11/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.11 OF 2005

(ON APPEAL FROM HCPI 1144 OF 2003)

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BETWEEN

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Before : Hon Yeung, Yuen JJA and Waung J in Court

Date of Hearing : 9 September 2005

Date of Judgment : 9 September 2005

Date of Handing Down of Reasons for Judgment : 16 September 2005

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REASONS  FOR  JUDGMENT

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Hon Waung J (giving the judgment of the Court) :

1.On 9 September 2005, we dismissed the defendants’ appeal with costs.  We indicated that we would hand down our Reasons and this we now do.

2.By his judgment dated 16 November 2004, Deputy High Court Judge Mayo held that the defendants were liable in negligence to the plaintiff for his injuries suffered in the course of his work while attempting to adjust the belt of a soil-transporting conveyer belt.  The belt had become misaligned with the result that soil was falling off the belt.  The machine was not turned off and the right hand and forearm of the plaintiff were injured.  The learned judge held the defendants to be wholly to blame and that there was no contributory negligence on the part of the plaintiff.

3.The plaintiff gave evidence on the accident and the judge accepted his evidence.  The defendants failed to call two key witnesses, namely Mr Law the foreman and Mr Chan the supervisor.

4.In reaching his conclusion that the defendants were 100% responsible, the learned judge made the following findings of fact :

“	7.	On the day in question he saw that the conveyor belt needed to be adjusted.
	8.	He did not see the foreman Mr Law and decided to attempt to alleviate the problem himself.  When he did so his hand and arm was caught in the machinery.
	9.	He said that he had never received instructions from anyone not to try himself to sort out a problem of this nature.
	10.	The overriding concern of his employers was to get the necessary work done as quickly as possible.  Certainly he did not consider that it was open to him to switch off the engine of the machine.
	11.	On previous occasions when there had been any delays or when the foreman was not satisfied with progress which was being made the Plaintiff would be sworn at.
	12.	He had no doubt that he had been expected to do what was necessary to maintain progress.
	There is every reason to accept his evidence.
	…
	18.	We also have the evidence of the Plaintiff that on several occasions when the conveyor belt had needed adjustment either he himself or Mr Law had adjusted it and had not turned off the motor.  I am satisfied that there was not a safe system of work and that the Defendants are guilty of negligence …”

5.At the hearing of the appeal, Mrs Dora Chan for the 2^nd defendant (appellant) accepted the findings of fact of the judge and abandoned also the appeal against quantum.  The appellant however still sought to argue that there was 25% contributory negligence on the part of the plaintiff.

6.It was pointed out at the hearing that there was a slight error in paragraph 18 of the judgment.  The witness statement of the plaintiff states in paragraph 11 thereof that :

“I had seen Mr. Law and other workers adjusting the belt before without turning off the motor. …”

Paragraph 18 of the judgment is based on paragraph 11 of the witness statement which was not challenged in oral evidence.  Paragraph 18 of the judgment should have stated more accurately that :

“… on several occasions, when the conveyor belt had needed adjustment Mr Law and other workers had adjusted it and had not turned off the motor. …”

But the slight error in the findings of fact does not in any way alter the substance of the findings of fact.

7.The appellant having accepted completely the above findings of fact of the learned judge, it is difficult for this court to see how a viable case of contributory negligence can be established.  It is important to note that on the basis of these findings of fact, there is very little room left for any additional (and consistent) findings of facts leading to a sustainable conclusion of contributory negligence.

8.Further the evidence clearly established that what the plaintiff did was consistent with past work practice adopted at the site by the defendants and that it was never objected to by Mr Law, the foreman or by Mr Chan the supervisor.  The reality as shown clearly by the evidence of the plaintiff is that the defendants only cared about getting the work done quickly without stop and the workers were scolded if that did not take place.  F63 :

“… he would swear at me, scold me non-stop.  Really, he — my boss would not care whether by doing that I would — it would lead to my death or not.”]

The plaintiff was never instructed to stop work and to look for a foreman.  [F58R] The plaintiff was never instructed that he was not permitted to carry out adjustment without informing the foreman.  [F58T] The plaintiff like his fellow worker was told to get on with their work with no slack and to remedy whatever was the problem as best they could.  F59S :

“On the contrary.  Mr Chan told us to do it ourselves.”

This was what the plaintiff did when the machine malfunctioned with misalignment and he could hardly be accused therefore of doing something which he should not do or that he knew what he was doing was wrong.  The accident was caused entirely by the improper system of work of the defendants.

9.In arguing before us that the judge ought to have found contributory negligence, Mrs Chan was in fact arguing that the findings of fact of the judge was wrong (although she professed that she accepted the findings of fact).  Most regrettably, Mrs Chan by taking words or facts out of context, sought to argue for a case not properly based on evidence as a whole on or the undisputed findings of facts.  We like the learned judge must apply building-site common sense and not ivory-tower common sense to assess whether the action of the plaintiff fall into the category of contributory negligence.  An attempt to make minor adjustment by a workman to a misaligned belt (resulting in soil falling off the belt) would hardly warrant a total stoppage of the belt or a calling-in of the foreman when from past practice at the site, workmen were supposed to get on with dealing with these minor problems.  The learned judge properly took all the evidence of the plaintiff into account in making his findings of fact and in reaching his conclusion of 100% liability.

10.In our view, the case of Sun Wan v. Ng Kam [1988] HKC 258 was properly applied by the learned judge because the plaintiff was “…doing it in that way to get on with his employer’s business; in a way, as the judge found, that was condoned and tacitly encouraged by his employer.”  (per Fuad VP at 369A).  I would only substitute the words “tacitly encouraged” with the words “explicitly instructed”.

11.In our view taking the evidence as a whole, there is simply no basis for us to find that the judge had erred in law or fact on the 100% liability conclusion.  The appeal in our opinion must be dismissed with costs.  The plaintiff’s own costs in the appeal is to be taxed in accordance with Legal Aid Regulations.

Mr N. Clough, instructed by Legal Aid Department, for the Plaintiff (Respondent)

Mrs Dora Chan, instructed by Messrs Ng & Co., for the 2^nd Defendant (Appellant)